A California federal court has held that the state law prohibiting the sale of foie gras resulting from the forcefeeding of ducks or geese is preempted by a federal law regulating the distribution and sale of poultry products. Association des Éleveurs de Canards et d’Oies du Québec v. Harris, No. 12-5735 (C.D. Cal., order entered January 7, 2015). The Ninth Circuit previously affirmed a lower court’s denial of a temporary injunction sought by the plaintiffs based on a failure to show a likelihood of success on the merits of their vagueness or commerce clause challenges. Additional information about the Ninth Circuit ruling appears in Issue 497 of this Update, and details about the U.S. Supreme Court’s denial of certiorari to review that decision appear in Issue 542.

The court first found that the plaintiffs had standing to challenge the ban despite that defendant Kamala Harris, in her capacity as state attorney general, had not personally threatened to enforce the law against them. It then compared the foie gras ban to provisions of the federal Poultry Products Inspection Act (PPIA), which expressly preempts states from imposing “[m]arking, labeling, packaging, or ingredient requirements (or storage or handling requirements . . . [that] unduly interfere with the free flow of poultry products in commerce).” The state argued that the ban regulated a feeding process that occurs before the birds enter an establishment subject to federal inspection and covered by the PPIA. The court disagreed, finding that the force-feeding process was addressed in a separate provision, while the section at issue prohibited the sale of foie gras produced by that process. The section banning the sale, the court found, imposed an ingredient requirement prohibited by the PPIA, and thus, that section is preempted by the federal statute.

Issue 550

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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.