Ninth Circuit Upholds Ruling in Challenge to California’s Foie Gras Ban

The Ninth Circuit Court of Appeals has affirmed a lower court ruling denying
the request for a preliminary injunction to halt the application of a California
statute that forbids the sale of products resulting from force feeding a bird
to enlarge its liver and prohibits force feeding birds to enlarge their livers
beyond normal size. Association des Éleveurs de Canards et d’Oies du Québec
v. Harris, No. 12-56822 (9th Cir., decided August 30, 2013). While the court
dismissed the governor and state as defendants on the basis of immunity, it
agreed with the district court that the state attorney general was not immune
from suit under the Eleventh Amendment. Additional information about the
lawsuit appears in issues 446 and 454 of this Update.

Because the court found that the plaintiffs, out-of-state foie gras producers
and a California restaurant that sold the product before the law took effect,
were not likely to succeed on the merits, it did not address the remaining
preliminary injunction elements. Among other matters, the court determined
that the statute did not prohibit the sale of anything other than duck livers
produced by force feeding in California, rejecting the plaintiffs’ argument
that it would also prohibit them from selling down or breast meat from its
force-fed ducks. The court also rejected the plaintiffs’ contention that the law
is unconstitutionally vague, because the terms “demonstrate that the statute
covers Plaintiffs’ conduct in this case.” The court further found that the law did
not violate the plaintiffs’ rights under the Commerce Clause.

Two of the court’s determinations were based on the preliminary nature of
the proceedings: (i) “Plaintiffs would have us assume, without evidentiary
support, that § 25982 amounts to a flat ban on foie gras. Plaintiffs’ declarations
do not demonstrate that foie gras may be produced only by force feeding. . . .
At this stage in the proceedings, Plaintiffs have not shown that the effect of §
25982 is a complete import and sales ban on foie gras”; and (ii) “At this stage
in the proceedings, Plaintiffs have not demonstrated that a nationally uniform
foie gras production method is required to produce foie gras. If no uniform
production method is required, Plaintiffs may force feed birds to produce
foie gras for non-California markets. California’s standards are therefore not
imposed as the sole production method Plaintiffs must follow.”