California attorney general appeals the verdict that struck down foie gras ban

Kamala Harris fights to maintain foie gras ban

LOS ANGELES, SACRAMENTO––California state attorney general Kamala Harris on February 5,  2015 filed notice of intent to appeal to the Ninth U.S. Court of Appeals a January 6, 2015 verdict by U.S. District Judge Stephen V. Wilson, of Los Angeles,  that overturned the state law prohibiting the sale of foie gras.

Wilson on January 7, 2014 permanently enjoined Harris from prosecuting restaurants and stores that sell foie gras from out of state. The Wilson verdict gutted the California law, in full effect since July 2012, because it means that even though California bans the production of foie gras by force-feeding ducks and geese through tubes thrust down their throats, foie gras produced by that method cannot be kept off of menus and store shelves.

9th Circuit would hear appeal

The Humane Society of the U.S. had immediately asked Harris to appeal. PETA founder Ingrid Newkirk predicted to media that “This decision will be reversed on appeal.”

But the legal context of the Wilson ruling is far from clear.

An appeal would be heard by the 9th U.S. Circuit Court of Appeals in San Francisco. Wilson, named to the federal bench by then-U.S. President Ronald Reagan in 1985, is regarded as a judicial conservative, while the 9th Circuit is often identified as the most “activist” of all federal appellate courts, and therefore most likely to reverse verdicts based strictly on the letter of existing law.

9th Circuit on Sea Shepherds

But the 9th Circuit has not recently been friendly toward animal advocacy. Ruling in a very different sort of case, a three-judge panel from the 9th Circuit on December 20, 2014 ordered a court-appointed commissioner to assess penalties against Sea Shepherd Conservation Society founder Paul Watson and others for waging alleged piracy and terrorism against Japanese whalers.

The 9th Circuit had in December 2012 ordered Sea Shepherd vessels to remain at least 500 feet from the whalers. Watson then transferred most Sea Shepherd Conservation Society assets and control of the organization to Sea Shepherd Australia, but the 9th Circuit held that this did not remove the matter from U.S. jurisdiction.

The Sea Shepherd Conservation Society vessel Bob Barker on February 26, 2013 survived being repeatedly crunched between the much larger Japanese whaling factory ship Nisshin Maru and the Sun Laurel, a Panamanian-flagged fuel oil tanker reportedly carrying a South Korean crew. (Sea Shepherd Conservation Society photo)

“Sea Shepherd U.S. is liable because it intentionally furnished cash payments, and a vessel and equipment worth millions of dollars, to individuals and entities it knew would likely violate the injunction,” wrote Judge Milan Smith for the entire panel.

International implications

Like the Sea Shepherd case, the foie gras case has international implications, and not just because the size of the potential foie gras market in California for producers in Canada, Europe, and Asia.

The Wilson verdict will not become a direct precedent for similar court cases over foie gras pending in other nations, but the California foie gras legislation, introduced in 2004, became a model for parallel legislation in many other nations.

Force-feeding birds to produce foie gras, legal almost everywhere a decade ago, is now banned in the Czech Republic, Denmark, Finland, Germany, Israel, Italy, Luxembourg, Norway, Poland, most Austrian provinces, Turkey, and the United Kingdom.

In addition, a plan to build the world’s largest waterfowl farm and foie gras factory in Jiangxi province, China, was scuttled in October 2012 after Chinese opponents of the project raised international attention to it.

Process standards

In partially overturning the California foie gras ban, Wilson applied legal reasoning more often seen in international cases than in cases internal to the U.S., but to inverted effect.

Wilson also in effect reversed his own previous ruling in a related case.

Wilson previously found, and a three-judge panel of the U.S. 9th Circuit Court of Appeals in August 2013 unanimously affirmed, that the California ban on the sale of foie gras may be enforced.

Led by Hudson Valley Foie Gras of New York state, the largest U.S. foie gras producer, out-of-state foie gras sellers in the 2013 case contended that the California ban is unconstitutionally vague and improperly regulates interstate commerce.

Explained Maura Dolan of the Los Angeles Times, “The companies contended that the law attempted to ban all products made from force-fed birds, including duck meat and down jackets. The 9th Circuit disagreed, concluding the ban was aimed solely at foie gras.”

The U.S. Supreme Court declined to review the 9th Circuit ruling.

Amended case

The plaintiffs then amended and refilled their case.

The portion of the California foie gras law which prohibited force-feeding ducks and geese to produce the inflamed fatty livers that are pulverized into foie gras, phased in over seven years, was not challenged in the most recent case.

Instead, Hudson Valley Foie Gras, Canadian foie gras producers, and the Hermosa Beach restaurant Hot’s Kitchen argued that the California law is pre-empted by the federal Poultry Products Inspection Act.

The Poultry Products Inspection Act prohibits states from imposing labeling, packaging, or ingredient requirements varying from federal standards.

Summarized Brian Melley of Associated Press, “The main question was whether the state was imposing its ban on an ingredient or a process. The judge rejected the state’s argument that the law was aimed at barring products created by a particular process.”

(PETA photo)

“Creative phrasing”

Wrote Wilson, “California cannot regulate foie gras products’ ingredients by creatively phrasing its law in terms of the manner in which those ingredients were produced.”

In rejecting the contention of attorneys representing the State of California that the California ban on the sale of foie gras from other states and nations is a “process standard,” Wilson took a position which previously has favored humane concerns in appeals by animal use industries against international regulation.

GATT & WTO

The Global Agreement on Trade & Tariffs, enforced by the World Trade Organization, allows nations to prohibit imports of products for a variety of reasons pertaining to public health and safety, and even for moral reasons, as the WTO recognized in a November 2013 landmark ruling that upheld most of the 2009 European Union ban on the import of products derived from hunting seals.

This duck would rather hide behind a rock in a pink pond than be in a foie gras farm. (Beth Clifton photo)

GATT and the WTO do not, however, allow nations to prohibit imports of products based on how they are made. For example, a nation may not prohibit the import of goods made by machine, while allowing the sale of similar goods made by hand.

Before GATT was brought into effect in 1948 as one of the first projects of the United Nations, such “process standards” were often used by nations to protect favored industries against foreign competition.

In 1995 a GATT panel held that the U.S. “dolphin safe” labeling law was a “process standard.” That verdict is still reverberating, not only in reference to campaigns to protect marine species from indiscriminate tuna fishing methods, but also as a precedent for animal use industry appeals against any and all other legislation seeking to restrict trade in products made by cruel means.

Wayne Pacelle comments

Assessed Humane Society of the U.S. president Wayne Pacelle,  “The court concluded that force-feeding birds is an ‘ingredient’ of foie gras, and Congress had intended for only the federal government to regulate the ingredients in poultry products. That’s a real reach by this judge. Not only has Congress never regulated the practice of force-feeding birds for foie gras––or perhaps even given the subject a passing thought––it has never regulated the on-farm treatment of farm animals at all. The USDA has even interpreted the federal Humane Methods of Slaughter Act to exclude any protection for bird–– including geese and ducks raised for foie gras.”

The courts have previously rejected the line of argument used in the Wilson verdict, Pacelle continued.

“Horse slaughter operators have argued that federal law prohibits states from banning the slaughter of horses for human food,” Pacelle recalled, “and two years ago California shark fin traders argued that the state’s ban on the sale of shark fins was preempted by the federal fisheries law. Both cases went against them. Under the district court’s theory in this case,” Pacelle contended, “California would even lack the authority to ban the use of poultry feed that is contaminated with salmonella or E coli.”

Brad Miller responds

Countered Humane Farming Association president Brad Miller, who has argued for more than a decade that the California foie gras law would ultimately prove to be unenforceable, “Who could have possibly guessed that explicitly legalizing the force-feeding of ducks and geese in California for eight years, while granting immunity from existing and future lawsuits to the state’s sole foie gras producer, all for the long-shot hope that a decade later the state might enforce a ban on importation and sales––regardless of the obvious federal preemption issues––could possibly end badly?

The basic techniques of foie gras production were known in Pharonic times.

Farm Sanctuary, In Defense of Animals, PETA, and the Humane Society of the U.S. declared victory on September 29, 2004 when California governor Arnold Schwarzenegger signed the California foie gras bill into law. But as the San Francisco Chronicle reported, “The state’s lone farm engaged in the practice, Sonoma Foie Gras, also hailed it as a victory.”

“We supported this bill and thank the governor and the legislature,” Sonoma Foie Gras owner Guillermo Gonzalez e-mailed to Andrew Gumbel and John Lichfield of The Independent, a London newspaper that covered the issue for British readers.

The British-based organization Compassion In World Farming initially applauded the California bill, but CIWF European Coalition for Farm Animals campaign coordinator Barbara Dias Pais on October 7, 2004 acknowledged that “The news was indeed badly misinterpreted by many of us here in Europe.”

Law did not ban foie gras,  said governor

The bill “does not ban foie gras,” Schwartzenegger stipulated. “This bill provides seven and a half years for agricultural husbandry practices to evolve and perfect a humane way for a duck to consume grain to increase the size of its liver through natural processes. If agricultural producers are successful in this endeavor,” Schwartzengger said, “the ban on foie gras sales and production in California will not occur.”

Responded Miller then, “California has become the first state to explicitly legalize force-feeding ducks and geese to produce foie gras.  In addition to protecting Sonoma Foie Gras for the next seven and a half years from being prosecuted under existing animal cruelty laws, this bill takes away the right of citizens to bring civil lawsuits against the company for force-feeding, and effectively eliminates a lawsuit pending against the company,” brought by In Defense of Animals.

HFA was the only major animal advocacy group to actively oppose the California foie gras bill.

Anti-downer law precedent

But HFA in 2008 joined the Humane Society of the U.S. and Farm Sanctuary in winning passage of an “anti-downer” law in California that significantly reinforced a 1994 ban on slaughtering downed livestock won chiefly by Farm Sanctuary. The 1994 had been successfully enforced only once.

The U.S. Supreme Court on January 23, 2012 unanimously overturned the 2008 California “anti-downer” law for reasons echoed in the January 2015 Wilson verdict on foie gras.

Pharonic foie gras production.

The 2012 loss before the U.S. Supreme Court is likely to influence Harris’ decision as to whether to further defend the foie gras verdict in a case likewise focused on federal pre-emption. The 2012 case concerned the Federal Meat Inspection Act, a law constructed parallel to the Poultry Products Inspection Act that is at issue in the California foie gras case.

The 2012 Supreme Court verdict specifically addressed the handling of non-ambulatory pigs. The 2008 California law also prohibited slaughtering downed cattle, sheep, and goats for human consumption, but U.S. President Barack Obama in March 2009 issued an executive order that established a similar rule pertaining to cattle at the federal level. Thus the California provisions about handling non-ambulatory cattle were not in dispute.

At issue, Justice Elena Kagan wrote, was whether the Federal Meat Inspection Act “expressly preempts a California law dictating what slaughterhouses must do with non-ambulatory pigs. We hold,” Kagan summarized, “that the FMIA forecloses the challenged applications of the state statute.

Preemption clause “sweeps widely”

“The FMIA’s preemption clause sweeps widely,” Kagan continued. “The clause prevents a state from imposing any additional or different––even if non-conflicting––requirements that fall within the scope of the Act and concern a slaughterhouse’s facilities or operations. At every turn [the California law] imposes additional or different requirements on swine slaughterhouses.”

The Supreme Court in the 2012 verdict took note that the 9th Circuit U.S. Court of Appeals in that case had upheld the California law governing the handling of non-ambulatory pigs based in part on the legal reasoning that it earlier used in upholding state prohibitions of horse slaughter.

Geese leading normal goose lives. (Beth Clifton)

However, the Supreme Court found, “A ban on butchering horses for human consumption works at a remove from the sites and activities that the FMIA most directly governs. When such a ban is in effect, no horses will be delivered to, inspected at, or handled by a slaughterhouse.”

By contrast, because “many non-ambulatory pigs become disabled either in transit to or after arrival at a slaughterhouse, a swine slaughterhouse will encounter non-ambulatory pigs. In that circumstance,” the California law “tells the slaughterhouse what to do with those animals. Unlike a horse slaughtering ban, the statute thus reaches into the slaughterhouse’s facilities and affects its daily activities.”

Thereby, the Supreme Court concluded, “The FMIA expressly preempts such a state law. Accordingly, we reverse the judgment of the Ninth Circuit.”

Footnote to 2012 verdict

A footnote to the Supreme Court verdict acknowledged that states may adopt laws governing livestock handling if those laws are consistent with the FMIA, citing as examples “state laws of general application,” such as “workplace safety regulations, building codes, etc.,” which “usually apply to slaughterhouses.”

Beth & Merritt Clifton.
(Geoff Geiger photo)

Further, Kagan wrote for the court, “States may exact civil or criminal penalties for animal cruelty or other conduct that also violates the FMIA…Although the FMIA preempts much state law involving slaughterhouses, it thus leaves some room for the states to regulate.”

But none of the possible exceptions that Kagan listed would appear to apply to the California foie gras law.

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