Victory—then Defeat—for California Foie Gras Ban

The day after California’s law banning the production and sale of foie gras took effect on July 1, 2012, producers and restaurateurs sued to overturn it. They sought—but were denied—an injunction against the law as the case was being adjudicated. The district court’s decision to deny the injunction was upheld by the Ninth Circuit Court of Appeals. The appeals panel disagreed with the plaintiffs’ argument that the ban “‘does nothing’” to prevent animal cruelty in California, noting that the plaintiffs had “presented no evidence that [the law] is an ineffective means of advancing that goal” and “give us no reason to doubt that the State believed that the sales ban in California may … prevent complicity in a practice that it deemed cruel to animals.” In October 2014, the US Supreme Court refused to take up the injunction appeal. The foie gras ban, therefore, remained in place, awaiting a decision on the underlying case.

Alas, the victory was short-lived. On January 7, 2015, Judge Stephen V. Wilson—the same district court judge who denied the injunction—overturned the ban on foie gras sales. (A ban on the production of foie gras still stands.) Judge Wilson ruled that the federal Poultry Products Inspection Act preempts the state law. In deciding that banning the sale only of foie gras produced from the liver of force-fed birds imposes an “ingredient requirement” not found in federal law, Judge Wilson wrote that “California cannot regulate foie gras products’ ingredients by creatively phrasing its law in terms of the manner in which those ingredients were produced.”

On February 4, California Attorney General Kamala Harris filed an appeal—sending the case back to the Ninth Circuit. But until the appeal is heard, unfortunately, foie gras is back on the menu in California.

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