The Foie Gras Litigation
USDA defines foie gras as duck or goose liver “obtained exclusively from specially fed and fattened geese and ducks.” This centuries-old process, long used in France, involves “force feeding” geese and ducks to enlarge their livers. It is the only way to produce genuine foie gras.
California, however, has enacted a statute stating that “[a] product may not be sold in California if it is the result of force feeding a bird for the purpose of enlarging the bird’s liver beyond normal size.” Cal. H & S Code § 25982. U.S. and Canadian foie gras producers (located in New York State and Quebec) have engaged in years-long litigation challenging this state statute. The case has been heard by the Ninth Circuit three times, and now the foie gras producers have filed a petition for a writ of certiorari. The petition asks the Supreme Court to decide whether the California statute is preempted by federal law and/or violates the dormant Commerce Clause.
ALF's Amicus Brief
ALF has filed an amicus brief urging the Supreme Court to review the foie gras case. Although there is a strong dormant Commerce Clause argument that the California statute is unconstitutional, ALF's brief focuses on federal preemption.
First, ALF argues that the doctrine of impossibility preemption invalidates the California statute. More specifically, compliance with both state and federal law is impossible because the force-feeding that the California statute prohibits if a product is to be sold in California as foie gras is the very same force-feeing that federal law requires if a product is to be sold in California as foie gras.
Second, the Poultry Products Inspection Act, under which USDA established the foie gras definition and product ingredient standards, contains an express preemption provision that bars the California statute. The preemption provision states that a State cannot impose “ingredient requirements” for poultry products that are “in addition to, or different than,” the USDA requirements. 21 U.S.C. § 467e. By banning sale of foie gras that “is the result of force feeding,” California is imposing an ingredient requirement for foie gras products—a requirement that they not contain force-fed goose or duck liver—that is indisputably different than the federal requirement. As a result, the California statute is expressly, as well as impliedly, preempted.
ALF’s amicus brief also challenges the California statute on “interstate federalism” grounds. Under the Constitution, every State is co-equal to every other State. The California statute, as a practical matter, dictates the foie gras production process used in other States. This is an unconstitutional encroachment on other States’ sovereign prerogatives because it in effect makes California “more equal” than other States. Neither California nor any other State, under the guise of a sales ban, should be able to regulate agricultural production processes on a nationwide basis.
