As we reported in 2017, the Ninth Circuit upheld a 2004 California law that prohibits force feeding a bird for the purpose of enlarging its liver beyond normal size and bans the in-state sale of foie gras produced by force feeding.  The court reasoned that even if U.S. Department of Agriculture (USDA) guidance defines foie gras to be the liver product of force-fed birds, the state law is not preempted by USDA’s Poultry Products Inspection Act (PPIA) because Congress intended for states to have extensive involvement in regulating poultry products and the ban does not dictate a method for foie gras production.

In a May 6, 2022 opinion, a split three-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld subsequent decisions in 2020 by a district court that rejected new constitutional claims by foie gras sellers on California’s in-state ban of foie gras from force feeding but awarded them declaratory relief on certain out-of-state sales.  Regarding the sellers’ preemption arguments, the panel majority said that California’s ban against the sale of foie gras from force fed birds is neither a command to market non-force-fed products as foie gras nor to call force-fed products something that would violate federal naming provisions.  Rejecting dormant Commerce Clause arguments, the panel majority found that California’s foie gras sales ban does not affect transactions outside the state and, as it is not discriminatory, the ban does not impose an undue burden on interstate commerce.  The court, however, upheld summary judgement for the plaintiffs that permits the sale of foie gras from force fed birds to individual California buyers from out-of-state companies by internet, phone or fax.

The plaintiffs have indicated they will request a rehearing en banc.  We will continue to monitor any developments.