Foie gras is based on the livers of geese and ducks. The traditional method of obtaining it is gavage, force-feeding poultry through a tube in their esophagi to enlarge the liver.  In 2004, California passed legislation effective in 2012 to ban the use of force-feeding in California and the sale in California of foie gras produced by such force-feeding any place else.  The rationale for the statute was that force-feeding is cruelty to animals.

Producers and consumers of foie gras sought to enjoin the ban on sales in California on the ground that the federal Poultry Products Inspection Act (PPIA) preempted the California statute.  Plaintiffs prevailed in the District Court, but the Ninth Circuit reversed in an opinion released on September 15, 2017. Association des Eleveurs De Canards et d’oies du Quebec, 870 F.3d 1140 (9th Cir. 2017).

The PPIA preempts state laws that impose marking, labeling, packaging or ingredient requirements in addition to or different from those prescribed by the PPIA.  The key issue in the case was whether California’s ban on the sale of foie gras banned an ingredient.  The District Court held that it did:  plaintiffs’ foie gras could comply with every federal requirement but still violate the California statute because “their products contain a particular constituent – force-fed bird’s liver.”  Thus, the statute “imposes an ingredient requirement.”

The Ninth Circuit thought otherwise.  It held that ingredients pertain to the “physical components that comprise a poultry product,” not the process by which those ingredients are produced.  Even if the result of the California statute is to prohibit foie gras altogether, PPIA preemption would not apply – nothing in the PPIA “limits a state’s ability to regulate the types of poultry that may be sold.”  The Ninth Circuit relied on Fifth and Seventh Circuit opinions holding that federal law did not preempt bans on the sale of horse meat.

The source of this disagreement is the Supreme Court’s ambiguous opinion in Nat’l Meat Association v. Harris. Harris interpreted the preemption provision of the Federal Meat Inspection Act (FMIA), which is essentially identical to the PPIA.  The California statute there at issue prohibited the purchase or sale of nonambulatory animals.

In holding that the FMIA preempted the statute, the Court observed:

  • [I]f the sales ban were to avoid the FMIA’s preemption clause, then any State could impose any regulation on slaughterhouses just by framing it as a ban on the sale of meat produced in whatever way the State disapproved.  That would make a mockery of the FMIA’s preemption provision.

The District Court thought that language mandated preemption in the foie gras case. The Ninth Circuit held that Harris involved completely different parts of the two preemption statutes.

Plaintiffs have now filed a petition for certiorari in the Supreme Court.  The petition presents two questions:  whether the PPIA preempts California’s ban on foie gras; and whether Congress has occupied the field of poultry product ingredients.

The petition asserts three grounds for granting the writ.  First, plaintiffs argue that the Ninth Circuit’s holding is contrary to Harris.  The Ninth Circuit held that nothing in the PPIA “limits a state’s ability to regulate the types of poultry that may be sold.”  The petition argues that Harris held that the states are not “free to decide which animals may be turned into meat.”  It also argues that the Ninth Circuit improperly invoked a presumption against preemption that the Supreme Court has explicitly rejected.

Second, the petition argues that the Ninth Circuit has created a clear circuit conflict on whether the PPIA reflects a congressional intent to occupy the field of ingredients in food.  It cites cases from the Fifth and Sixth Circuits so holding.  The conflict is not, however, as great as the petition makes out.  The Ninth Circuit’s authority clearly does hold that states can ban the sale of particular animals for human consumption, although both of those cases pre-dated Harris.

Third, the petition argues that the national interest in uniform application of the PPIA warrants a grant.  If the Ninth Circuit got it right, the City of San Francisco could ban the sale or consumption of all meat products, leading to a potentially Balkanized system of regulation.

Five amici have filed briefs in support of the petition.  California filed its response on May 14, 2018.  We would not be surprised if the Court asked the solicitor general to weigh in, in which case the petition will not be decided until next fall at the earliest.