Earlier this month, the U.S. District Court for the Central District of California agreed with a group of foie gras producers that California’s ban on the product’s sale was preempted by federal law, and the court overturned the ban that has been in place since July 1, 2012. The plaintiffs—foie gras producers from Canada and New York and a California restaurant owner—challenged the portion of California’s Health & Safety Code § 25982, which banned the sale of products made through gavage, the practice of feeding geese through an esophageal tube to fatten their livers.
The foie gras producers successfully argued that the Poultry Products Inspection Act (PPIA) expressly preempted California’s law as an “ingredients requirement,” which goes above and beyond those requirements provided by federal law. The court rejected the argument that § 25982 regulated a feeding process (which a state has power to regulate) rather than an ingredient (which is governed by federal law exclusively) and concluded that the ban was therefore not preempted. Acknowledging that the line between production and product “will not always be easy to draw,” the court sided with the foie gras producers: “[H]ere the line is clear: Section 25982 expressly regulates only the sale of products containing certain types of foie gras products—i.e. foie gras from force-fed birds.” As a result, § 25982 imposed an “ingredient requirement” beyond those requirements provided by federal law, and it was therefore preempted.
As an interesting side note, this ruling, hailed as a victory by foie gras producers and restaurateurs alike, has a somewhat strange result for would-be foie gras producers within California because the portion of the statute that banned the production of foie gras within California remains unchallenged. Because the plaintiff producers were from out of state, they did not have standing to challenge that portion of the law. As a result, the California production ban remains in place for now, while sales will be allowed to proceed.
The case continues an unbroken line of precedent that affirms broad federal preemption for the regulation of the meat and poultry products as overseen by USDA’s Food Safety and Inspection Service (FSIS). Such preemption can be viewed as a logical extension of the fact that FSIS’s continuous inspection and prior label approval requirements are far more extensive than those imposed on other segments of the food industry, and perhaps it can be viewed as a compensatory benefit as well.