Association des Eleveurs de Canards et d'Oies du Quebec, a Canadian nonprofit corporation; HVFG, LLC, a New York limited liability company; Hot's Restaurant Group. Inc., a California corporation, Plaintiffs-Appellees,
Xavier Becerra, Attorney General, Defendant-Appellant.
and Submitted December 7, 2016 Pasadena, California
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
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.
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.
/ Poultry Products Inspection Act
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.
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.
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.
NGUYEN, CIRCUIT JUDGE.
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.
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
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.
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.
California's Force-Feeding Ban
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. §
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).
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.
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