(CN) — A Ninth Circuit panel heard arguments Monday over a California law that effectively bans foie gras by prohibiting the sale of the French delicacy if it was produced by force-feeding the duck or goose.
Foie gras producers have challenged the law numerous times since 2012, and the Ninth Circuit even revived the ban in its first first crack at the case in 2017. In 2020, a federal judge gave the OK for imports of foie gras from out of state. The arguments on Monday centered on the extent to which California law banned the sale of fattened duck or goose liver products and whether the law is preempted by federal policy.
The three-judge Ninth Circuit panel pressed Peter Chang, a deputy attorney general from the California Department of Justice, about what qualified as a sale in California.
“For a sale to be prohibited, the buyer has to be in California. Also, the product has to be shipped to California,” said Chang. “It applies to a person who is purchasing foie gras in California. The person is sitting in California on his or her computer.”
The judges voiced some skepticism about the scope of the ban, positing hypotheticals of a California resident who purchased foie gras in person in another state and had it shipped to their California address, or a non-California resident who is temporarily in the state and places an order of foie gras to be shipped to their address outside California.
“It’s one thing if you prohibit them from walking down to the local grocery store and buying foie gras, it’s another thing saying you can’t even go to New York and buy it and have them ship it to you,” said U.S. Circuit Judge Ryan Nelson, a Donald Trump appointee.
Chang said both hypotheticals would be lawful under the state’s interpretation of the law. He said California never intended to and has never argued that the law was an outright ban on foie gras. Rather, Chang said the delicacy is only prohibited if it was produced by force-feeding the fowl.
U.S. Circuit Judge Lawrence VanDyke took some umbrage with Chang’s reasoning, noting that the federal labeling guidance on foie gras defines the product as “fatty liver from specially fed and fattened ducks.” The Trump appointee questioned whether California's emphasis on force-feeding is incongruent with the “specially fed and fattened” federal requirement, which Chang said does not have the force of law.
“Your opponents have been pounding this drum since day one, that this is the only way to make foie gras,” said VanDyke. “Now, finally they’ve got the stuff in the record, in this third iteration up in front of us, that it is the only way [to produce foie gras], and you haven’t put in anything to the contrary.”
Chang answered that even if the law is effectively a ban on all foie gras, California is within its rights to ban foie gras outright.
Michael Tenenbaum, the attorney representing the foie gras producers, argued that the prohibition on force-feeding amounts to a total ban on foie gras sales in California, noting the evidence shows physical and chemical differences between the livers of birds that were force-fed and those that were not.
The Poultry Products Inspection Act prevents states from imposing additional or different requirements on the ingredients of a poultry product, Tenenbaum said.
“[The California law] is a ban on ingredients because what it says is you can use duck liver in your poultry products, but what you can’t use is duck liver if it was obtained from a duck that was fed in a particular way,” Tenenbaum said. “Which is the same as saying if it was obtained from a duck with brown feathers as opposed to white feathers. It places a requirement on the ingredients of that product.”
Nelson and U.S. Senior Circuit Judge Andrew Kleinfeld — a George H.W. Bush appointee — pushed back when Tenenbaum pointed to the apparent tension between federal policy on foie gras and the California law.
“That argument hinges on a presumption that a definition of an ingredient under federal law gives somebody a right to sell that product, and that doesn’t seem to exist,” said Nelson. “All the federal government says is, if you want to label this as foie gras, this is how you have to do it. And California said you can’t sell that here.”
When Tenenbaum said it was impossible for foie gras producers to comply with both federal requirements and the California law, Nelson retorted that they could in fact comply with both by not selling foie gras in California.
Tenenbaum argued the inspections, labeling requirements and other regulatory measures associated with poultry products gave foie gras producers a right to sell, comparing them to drug manufacturers. Nelson cut him off, noting that the approval processes for medications and medical devices requires specific approvals and is different from that of poultry products.
“If you go get approval for sale, that’s a whole different thing. Then you do have a right to sell it,” Nelson said. “Here, there is no right to sell it.”
Nelson said that Tenenbaum’s argument was weakened by court precedents and that an en banc hearing would likely be necessary to reevaluate past rulings.
Representatives for Chang and Tenenbaum did not respond to requests for comment.