Association Des Eleveurs De Canards Et D'oies Du Quebec v. Becerra

          Argued and Submitted December 7, 2016 Pasadena, California

         Appeal from the United States District Court No. 2:12-cv-05735-SVW-RZ for the Central District of California Stephen V. Wilson, District Judge, Presiding

          Aimee Feinberg (argued), Deputy Solicitor General; Peter H. Chang, Deputy Attorney General; Constance L. LeLouis, Supervising Deputy Attorney General; Douglas J. Woods, Senior Assistant Attorney General; Edward C. DuMont, Solicitor General; Xavier Becerra, Attorney General; Office of the Attorney General, Sacramento, California; for Defendant-Appellant.

          Michael Tenenbaum (argued), The Office of Michael Tenenbaum, Santa Monica, California, for Plaintiffs-Appellees.

          Bruce A. Wagman, Schiff Hardin LLP, San Francisco, California; Melissa Grant and Arnab Banerjee, Capstone Law APC, Los Angeles, California; for Amici Curiae Humane Society of the United States, Humane Society Veterinary Medical Association, Animal Legal Defense Fund, Farm Sanctuary Inc., Marin Humane Society, and Mercy for Animals.

          Before: Harry Pregerson, Jacqueline H. Nguyen, and John B. Owens, Circuit Judges.

         SUMMARY^[*]

         Preemption / Poultry Products Inspection Act

         The panel reversed the district court's grant of summary judgment in favor of plaintiffs who challenged California Health and Safety Code § 25982, a provision that bans the sale of products made from force-fed birds, such as foie gras; vacated the district court's permanent injunction; and remanded for further proceedings.

         The panel rejected plaintiffs' express preemption argument - that California's sales ban was expressly preempted because the Poultry Products Inspection Act ("PPIA") prohibited states from imposing "ingredient requirements" that were "in addition to, or different than, " the federal law and its regulations. 21 U.S.C. § 467e. The panel held that section 25982 was not expressly preempted. Specifically, the panel held that the ordinary meaning of "ingredient" and the purpose and scope of the PPIA made clear that "ingredient requirements" pertain to the physical components that comprise a poultry product, not animal husbandry or feeding practices. The panel held that California law did not impose a preempted ingredient requirement, and section 25982 was not preempted by the PPIA even if it functioned as a total ban on foie gras.

         The panel also rejected plaintiffs' arguments that the PPIA impliedly preempted section 25982 under the doctrines of field and obstacle preemption. First, under the doctrine of field preemption, states are precluded from regulating conduct in a field that Congress has determined it will regulate. The panel held that because the PPIA itself contemplated extensive state involvement, Congress clearly did not intend to occupy the field of poultry products. Second, obstacle preemption occurs where state law stands as an obstacle to the purposes and objectives of Congress. The panel held that plaintiffs failed to explain how section 25982 stood as an obstacle to the PPIA's objectives of ensuring that poultry products are "wholesome, not adulterated, and properly marked, labeled, and packaged." 21 U.S.C. § 451.

          OPINION

          NGUYEN, CIRCUIT JUDGE.

         In 2004, California passed legislation to prohibit the practice of force-feeding ducks or geese to produce foie gras, an expensive delicacy made from their liver. California determined that the force-feeding process, which typically involves inserting a 10- to 12-inch metal or plastic tube into the bird's esophagus to deliver large amounts of concentrated food, is cruel and inhumane. The state therefore prohibited force-feeding a bird "for the purpose of enlarging the bird's liver beyond normal size, " Cal. Health & Safety Code § 25981, as well as the in-state sale of products made elsewhere from birds force-fed in such a manner, id. § 25982. The legislation does not ban foie gras itself, but rather the practice of producing foie gras by force-feeding. California provided a grace period of over seven and a half years for producers to transition to alternative methods of producing foie gras. Id. § 25984.

         On July 2, 2012, the day after the state law took effect, Plaintiffs sued the state of California, challenging only Health and Safety Code section 25982, the provision that bans the sale of products made from force-fed birds. Plaintiffs initially argued that the sales ban violates the Due Process and Commerce Clauses of the U.S. Constitution. After these claims were dismissed, Plaintiffs amended their complaint to allege that the federal Poultry Products Inspection Act (the "PPIA"), which has been on the books for over fifty years, preempts the state provision. The district court concluded that section 25982 is expressly preempted by the PPIA and granted Plaintiffs summary judgment. We reverse and remand.

         I. BACKGROUND

         Plaintiffs Hudson Valley Foie Gras and the Association des Éleveurs de Canards et d'Oies du Québec raise birds for slaughter and produce foie gras at their facilities in New York and Quebec, respectively; Plaintiff Hot's Restaurant Group is a restaurant in California that sells foie gras.

         The foie gras products that Plaintiffs make and sell are produced by force-feeding birds to enlarge their livers. From the day they hatch, the birds undergo a regimented feeding process that lasts for about eleven to thirteen weeks. Ass'n des Éleveurs de Canards et d'Oies du Québec v. Harris (Canards I), 729 F.3d 937, 942 (9th Cir. 2013). For the first few months, the birds are fed various pellets that are made available to them twenty-four hours a day. Id. Then, for a two-week period, the feeding pellets are available only during certain times of the day. Id. In the final stage of the feeding process, which lasts up to thirteen days, the birds are force-fed in a process called gavage, during which feeders use "a tube to deliver the feed to the crop sac at the base of the duck's esophagus." Id.

         A. California's Force-Feeding Ban

         In 2004, the California state legislature enacted a statutory framework to end the practice of force-feeding birds to fatten their livers. Cal. Health & Safety Code §§ 25980-25984. Section 25981 makes it illegal to force-feed a bird "for the purpose of enlarging the bird's liver beyond normal size." Section 25982, the only provision challenged in this case, prohibits selling a product "in California if it is the result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size." A "bird" is defined to include a duck or a goose, id. § 25980(a), and "force-feeding" is defined as a process by which a bird consumes more food than it would typically consume voluntarily, conducted through methods such as "delivering feed through a tube or other device inserted into the bird's esophagus, " id. § 25980(b).

         California's law was designed to rectify what the state considered an inhumane feeding practice. See 2004 Cal. Legis. Serv. Ch. 904 (S.B. 1520) (Legislative Counsel's Digest) (seeking to establish provisions for force-feeding birds similar to those already in place for "keeping horses or other equine animals"). According to the legislative analysis of the law, force-feeding commonly requires a worker to hold the bird between her knees, grasp the bird's head, insert a 10- to 12-inch metal or plastic tube into the bird's esophagus, and deliver large amounts of concentrated meal and compressed air into the bird. See, e.g., Cal. Assemb. Comm. on Bus. & Professions, Analysis of S.B. 1520, 2003- 2004 Reg. Sess., at 4-5 (June 20, 2004); Cal. Sen. Comm. on Bus. & Professions, Analysis of S.B. 1520, 2003-2004 Reg. Sess., at 5-6 (May 6, 2004). The bird is force-fed up to three times a day for several weeks and its liver grows to ten times the size of a normal liver. Cal. Assemb. Comm. on Bus. & Professions, Analysis of S.B. 1520, 2003-2004 Reg. Sess., at 5 (June 20, 2004). This process is apparently "so hard on the birds that they would die from the pathological damage it inflicts if they weren't slaughtered first." Cal. Assemb. Comm. on Bus. & Professions, Analysis of S.B. 1520, 2003-2004 Reg. Sess., at 2 (Aug. 17, 2004); Cal. Sen. Comm. on Bus. & Professions, Analysis of S.B. 1520, 2003- 2004 Reg. Sess., at 3 (Aug. 25, 2004).

         In enacting the force-feeding ban, California also considered a study conducted by the European Union's Scientific Committee on Animal Health and an Israeli Supreme Court decision. The European Union study concluded that force-feeding is detrimental to the welfare of birds, and the Israeli Supreme Court similarly concluded that force-feeding causes birds pain and suffering. Cal. Assemb. Comm. on Bus. & Professions, Analysis of S.B. 1520, 2003- 2004 Reg. Sess., at 6-7 (June 20, 2004); Cal. Sen. Comm. on Bus. & Professions, Analysis of S.B. 1520, 2003-2004 Reg. Sess., at 7-8 (May 6, 2004). In light of these and other factors, California decided to enact the ban, joining a growing list of countries around the world.^[1]

         California's legislature intended to ban not foie gras itself, but rather the practice of producing foie gras by force-feeding. The law's author, Senator John Burton, made clear when he introduced the bill that it "has nothing to do . . . with banning foie gras" and that it prohibits only the "inhumane force feeding [of] ducks and geese." Then-Governor Arnold Schwarzenegger echoed this sentiment in his signing statement: "This bill's intent is to ban the current foie gras production practice of forcing a tube down a bird's throat to greatly increase the consumption of grain by the bird. It does not ban the food product, foie gras." Signing Message of Governor Arnold Schwarzenegger, Sen. Bill 1520, 2003- 2004 Reg. Sess. (Sept. 29, 2004). The legislature provided more than seven and a half years between the passage of the law and its effective ...