In Ass’n des Eleveurs de Canards et d’Oies du Québec v. Bonta, plaintiff-appellees (foie gras producers and a California restaurant) argued a third set of appeals in their challenge to California’s foie gras law. Ultimately, their goose is cooked: the Ninth Circuit affirmed the district court’s dismissal of the complaint in its entirety. However, in affirming the district court’s declaratory judgment, the court also interpreted the law to allow certain foie gras sales to California residents, as long as the sales occur outside the state.

History of California’s Foie Gras Law

California Health and Safety Code section 25982, enacted via Senate Bill 1520 in 2004, prohibits the sale in California of a product that results from “force feeding a bird for the purpose of enlarging the bird’s liver beyond normal size.” (Id.) Foie gras is essentially that: a fatty goose or duck liver delicacy that is created by force feeding and enlarging the bird’s liver while it is alive. While there is anecdotal evidence that foie gras can be produced without the force feeding method, the reality in the United States (as is true with many other animal products) is that doing so would probably not be profitable or financially feasible in the context of large-scale production.

As was the case with other California laws affecting the treatment and confinement of farm animals, upon passage of the foie gras law in California, meat producers, suppliers, and sellers immediately prepared litigation to invalidate it. The main legal challenge to the foie gras law was Association des Eleveurs de Canards et d’Oies du Quebec v. Harris (Case No. 12-5735), filed in July 2012 in the U.S. District Court for the Central District of California. (Note that the foie gras law contained a grace period to allow producers to comply, so it did not go into effect until July 1, 2012. See Cal. Health & Saf. Code, § 25984.)

A nearly decade-long battle ensued:

  • On July 2, 2012, the plaintiffs—two producers of foie gras and a restaurant group based in southern California—filed suit, seeking to invalidate the ban based on vagueness (a constitutional challenge). The district court denied the plaintiff’s request for a preliminary injunction in a September 2012 decision.
  • The plaintiffs appealed to the Ninth Circuit, where on Aug. 30, 2013, the panel unanimously upheld the denial of the preliminary injunction, using step-by-step constitutional analysis to find that the law likely violated neither the Due Process Clause nor the Commerce Clause. (See Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris (Canards I) (9th Cir. 2013) 729 F.3d 937.) The Ninth Circuit subsequently denied the plaintiffs’ motion for reconsideration.
  • On Jan. 7, 2015, on remand, the district court ruled in favor of the plaintiffs’ motion for partial summary judgment, finding that California’s law was preempted by the federal Poultry Products Inspection Act (PPIA). (See Ass’n des Eleveurs de Canards et d’Oies du Québec v. Harris (C.D. Cal. 2015) 79 F.Supp.3d 1136.) Immediately upon the filing of this decision, California’s “ban on foie gras” was effectively lifted.
  • California’s Attorney General appealed, and on Sept. 15, 2017, the Ninth Circuit held that the district court erred in finding express preemption by the PPIA. (See Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Becerra (Canards II) (9th Cir. 2017) 870 F.3d 1140.) The Ninth Circuit panel found that the PPIA’s ingredient requirements were limited to the physical components of poultry products and did not broach the subjects of animal husbandry or feeding; thus California’s regulation of the treatment of the animals did not conflict with the federal law. The Ninth Circuit subsequently denied the plaintiffs’ motion for a rehearing en banc.
  • The plaintiffs petitioned the U.S. Supreme Court for a writ of certiorari, which was denied on Jan. 7, 2019. (Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Becerra (2019) ___U.S.___ [139 S.Ct. 862, 202 L.Ed.2d 567].)
  • On Feb. 27, 2019, the district court granted in part the plaintiffs’ motion to amend their complaint (but noted that because of the Ninth Circuit’s decision in Canards II, any claim of express preemption by the PPIA would be futile). The plaintiffs amended their complaint to include the theory that the foie gras law is preempted under the doctrine of impossibility preemption, and added a dormant Commerce Clause claim.
  • On Jan. 14, 2020, the district court denied the plaintiffs’ motion for partial summary judgment and granted the Attorney General’s motion to dismiss the complaint in its entirety. The court found no impossibility preemption and rejected the plaintiffs’ dormant Commerce Clause claim.
  • On July 14, 2020, the district court denied the plaintiffs’ motion to reconsider. The court also entered judgment in favor of the plaintiffs on their claim for declaratory judgment, notably finding that section 25982 is not an outright ban of foie gras; rather, a sale of foie gras would be permissible under certain facts (e.g., sales made outside California over the phone or internet and delivered via third party to a California resident).
  • Most recently, on May 6, 2022, a Ninth Circuit panel yet again upheld California’s foie gras law, affirming the district court’s decision. (Ass’n des Eleveurs de Canards et d’Oies du Québec v. Bonta (9th Cir. May 6, 2022, Nos. 20-55882, 20-55944) ___ F.3d ___.) We can presumably call this case “Canards III.

Ninth Circuit’s Analysis in Canards III

The Ninth Circuit’s opinion in Canards III addressed three issues de novo, and ultimately affirmed the district court on all three:

  1. Whether California Health and Safety Code section 25982 is preempted by the PPIA (21 U.S.C. § 451) because it is impossible to comply with both the PPIA and section 25981 (prohibiting force feeding);
  2. Whether section 25982 violates the dormant Commerce Clause; and
  3. Whether section 25982 permits “certain internet, phone, and fax sales by out-of-state sellers” (which is the Attorney General’s appeal of the district court’s declaratory judgment ruling).

In deciding the impossibility preemption question, the Ninth Circuit assumed without deciding that section 25982 prohibits all foie gras sales in California, and found that even if the PPIA defined foie gras using the USDA’s definition (liver from “specially fed and fattened poultry”), the impossibility preemption argument still fails. Section 25982’s sales ban does not require that producers stop producing foie gras via force feeding; it just prohibits them from selling the products in California. The court distinguished a recent Supreme Court case, National Meat Ass’n v. Harris (2012) 565 U.S. 452, where a California law that was structured as a sales ban (banning sales of pork meat from nonambulatory animals) had the “inevitable effect” of ensuring that slaughterhouses removed nonambulatory pigs from the production process, thus dictating slaughterhouse operations—an area squarely occupied by federal law. Here, the sales ban is just that—a ban on sales in California—and the foie gras producers are free to continue producing foie gras via force feeding under the law.

As to the dormant Commerce Clause argument, the Ninth Circuit reiterated its previous reasoning that states are “free to regulate commerce and contracts within their boundaries with the goal of influencing the out-of-state choices of market participants.” (Rocky Mountain Farmers Union v. Corey (9th Cir. 2013) 730 F.3d 1070, 1103.) The court found that the foie gras sales ban does not affect transactions outside of California, nor does it unduly burden interstate commerce (as balanced against California’s interest in public health and preventing animal cruelty).

Finally, the court affirmed the district court’s declaratory judgment, rejecting the Attorney General’s argument on appeal that the sales ban prohibits sales to California consumers “regardless of seller location.” The court determined that considering the language of section 25982, the pertinent question is where the sale occurs—not where the seller is located. Because section 25982 does not define “sale,” the court considered various sources to conclude that that sales are defined as transactions where title passes. Consistent with its reasoning as to the preemption and dormant Commerce Clause claims, the court was careful to note that the law is a sales ban—it does not purport to limit the possession or consumption of foie gras. Therefore, the law permits out-of-state-sales as outlined by the district court.

Canards III also includes a dissent by Judge Lawrence VanDyke, who would have allowed the plaintiffs to amend their complaint to allege express preemption based on an “ingredient requirement” (a rejected argument in Canards II). Judge VanDyke stated that he believes the panel in Canards II “engaged in flawed analysis,” and that newly presented evidence by the plaintiffs would allow the court to depart from direct precedent and allow plaintiffs’ express preemption claim.

Impact of Canards Cases on Other Farm Animal Welfare Cases

The Canards cases apply the same analysis and reasoning as other farm animal welfare cases in California, but the animal product itself is so different from the other regulated animal products (e.g., pork or eggs). Many Californians buy and consume pork or eggs on a weekly basis, but it is unlikely that they have foie gras in their kitchens. This is because foie gras is considered a delicacy and is typically served in high-end French restaurants (though some restaurants eschew the dish as a “symbolic luxury food”). Thus, the public reaction to the ups and downs of the foie gras law, while uproarious, was overrepresented by restaurateurs and foodies.

Restaurants serving foie gras really did not want to give it up. When the foie gras law went in effect in 2012, many restaurants went so far as serving it as a “complimentary add-on” as an attempt to get around the ban (they weren’t “selling” the product if they were giving it away for free). When the law was temporarily suspended in 2015, restaurants and restaurant-goers celebrated, and local media sources published guides for finding foie gras restaurants in your area, as if the public had been starved of an important staple for the past three years.

Some have argued that organizations like the Humane Society and the Animal Legal Defense Fund (who filed amicus briefs in the Canards cases) should be focusing their efforts on more widespread cruel practices prevalent in factory farming. But it is clear from the Canards line of cases that what’s good for the goose is good for the gander: as these constitutional arguments are repeated and recycled—and ultimately rejected—in farm animal welfare cases, the precedent for California legislating against animal cruelty becomes stronger.

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