The Ninth Circuit has upheld California’s ban on force-feeding ducks and geese to produce foie gras, finding the state’s law is not preempted by the Poultry Products Inspection Act (PPIA). Assoc. des Éleveurs de Canards et d’Oies du Québec v. Becerra, No. 15- 55192 (9th Cir., opinion filed September 15, 2017). In 2013, the Ninth Circuit rejected a constitutional challenge to the ban filed by the same plaintiffs.

The court reversed a grant of summary judgment in favor of the plaintiffs, who challenged the state’s ban on sales or production of foie gras made from force-fed birds. First, the court held the ban is not expressly preempted by the PPIA because the federal statute’s “ingredient” requirement addresses the components of poultry products, not husbandry or feeding practices, and California’s law does not ban all foie gras—only that made from force-fed birds. “Nothing in the federal law … limits a state’s ability to regulate the types of poultry that may be sold for human consumption,” the court said.

The court also ruled that the PPIA does not preempt the state law under the doctrines of field or obstacle preemption because it does not preclude a state’s role in poultry regulation and the plaintiffs did not show how the state law created an obstacle to the objectives of the PPIA, which are to provide “wholesome, not adulterated, and properly marked, labeled and packaged” poultry products. Additional details about the continuing dispute over force-fed foie gras appear in Issues 497, 542, 550, 554, 584, 587 and 626 of this Update.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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