The Poultry Products Inspection Act and California’s Foie Gras Ban: An Analysis of the Canards Decision and Its Implications for California’s Animal Agriculture Industry

The Poultry Products Inspection Act and California’s Foie Gras Ban: An Analysis of the Canards Decision and Its Implications for California’s Animal Agriculture Industry

In 2012, California banned the sale of force-fed foie gras—the “fatty liver” of ducks and geese. Just three years later, a federal district court overturned that ban in Association des Éleveurs de Canards et d’Oies du Québec v. Harris (Canards). Animal rights activists decried the decision as a step backwards in ethical eating. Industry groups retorted that the Poultry Products Inspection Act (PPIA) required the ruling. From a distance, several commentators inquired: was foie gras worth the fuss?

This Note responds affirmatively. Section 467(e) of the PPIA prohibits states from imposing “ingredient requirements” that are “in addition to, or different than” those made under the PPIA. The Canards court construed that provision as expressly preempting California’s foie gras ban, which—unlike the PPIA—mandated that foie gras products come from non-forced-fed ducks and geese.

This reasoning is problematic. By literally imposing section 467(e), the Canards court failed to rigorously analyze whether California’s ban created an ingredient requirement within the meaning of the PPIA. A proper preemption analysis requires that contextual construction. Further, the PPIA’s purpose and legislative history suggest that section 467(e) should not be read as preempting California’s ban.

The Canards court’s reasoning might have dramatic implications. Because the Federal Meat Inspection Act and the Egg Products Inspection Act contain virtually identical preemption provisions, other courts could apply the Canards court’s logic to displace state laws providing from the humane treatment of cows, pigs, and egg-laying hens. In other words, Canards could broadly eviscerate states’ ability to regulate animal cruelty. As a consequence, the foie gras fight extends far beyond ducks and geese. It may affect the food we all eat.

PDF

More in this Issue

The Racial Politics of Protection: A Critical Race Examination of Police Militarization

Across the country, police departments are using aggressive, military-style tactics and weapons to enforce the law. More recently, the state of police militarization displayed in cities like Ferguson and Baltimore raises deep questions about the ethics of paramilitary policing and its consequences for minority citizenship and inclusion. This Note examines police militarization as the result […]

Standard White: Dismantling White Normativity

Standard White reviews White By Law by Ian Haney López and examines the content and construction of whiteness as a racial category. Drawing on examples from medicine, higher education, and naturalization law, Standard White illustrates the central position that whiteness continues to occupy in the United States. By focusing on the operation of white normativity, […]

The Sex Bureaucracy

We are living in a new sex bureaucracy. Saliently decriminalized in the past decades, sex has at the same time become accountable to bureaucracy. In this Article, we focus on higher education to tell the story of the sex bureaucracy. The story is about the steady expansion of regulatory concepts of sex discrimination and sexual […]

The Internet of Things and the Fourth Amendment of Effects

“Smart objects” connected to the “Internet of Things” present new possibilities for technological surveillance. This network of smart devices also poses a new challenge for a Fourth Amendment built around “effects.” The constitutional language protecting “persons, houses, papers, and effects” from unreasonable searches and seizures must confront this change. This Article addresses how a Fourth […]