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