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California foie gras law

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California foie gras law
California State Legislature
Full nameForce Fed Birds
IntroducedFebruary 19, 2004
Assembly votedAugust 24, 2004
Senate votedMay 18, 2004
Signed into lawSeptember 29, 2004
Sponsor(s)John Burton
GovernorArnold Schwarzenegger
CodeHealth and Safety Code
Section25980–25984
WebsiteSB-1520 Force fed birds.(2003-2004)
Status: Current legislation

The California foie gras law or Senate Bill 1520 (S.B. 1520)[1] is a California State statute that prohibits the "force feed[ing of] a bird for the purpose of enlarging the bird's liver beyond normal size" (California Health and Safety Code § 25981) as well as the sale of products that are a result of this process (§ 25982).[2] This outlawed the traditional method of producing foie gras in California. The law was enacted in 2004 and went into effect on July 1, 2012.[3][4] The law has been challenged repeatedly since its enactment. The ninth circuit in 2022 upheld a lower court’s 2020 ruling, which allowed residents to purchase foie gras for their individual use from out-of-state retailers.[5]

On January 7, 2015, U.S. District Judge Stephen V. Wilson held that the portion of California's law banning the sale of foie gras within the state (California Health and Safety Code § 25982) was preempted by the federal Poultry Products Inspection Act, and enjoined the California Attorney General from enforcing it.[6][7] That decision was overturned on appeal on September 15, 2017,[8] but the decision was stayed until December 17 to permit the plaintiffs to petition the U.S. Supreme Court for certiorari.[9] The certiorari petition was filed on March 9, 2018, and denied on January 7, 2019, leaving the lower court ruling in effect.[10] In 2023, the Supreme Court of the United States declined to take up the case, leaving the ban in place.[11]

Background

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S.B 1520 was introduced in the California Senate on February 19, 2004[12] by the Senate President pro tempore John Burton at the request of a coalition of animal protection organizations that included Viva!USA, Farm Sanctuary, Los Angeles Lawyers for Animals, and the Association of Veterinarians for Animal Rights.[13]

Burton stated, "We just shouldn't be cramming a tube down a duck's throat and forcing in food to make foie gras," and that foie gras production is "an inhumane process that other countries have sensibly banned. I'm pleased California will be next on the list."[14]

The legislature passed the bill and it was signed into law by Governor Arnold Schwarzenegger on September 29, 2004.[12]

The law included a provision that it would take effect almost eight years after enactment in order to allow time for techniques to be developed by which foie gras could be produced without force-feeding birds.[15] As of the date the law took effect, no such technique had been developed that was deemed commercially viable.

During the months leading up to the date when the law would go into effect, some California restaurants hosted elaborate multi-course meals featuring foie gras in many forms, drawing patrons who wanted to eat foie gras before the ban went into effect.[16]

Lawsuits seeking to overturn law

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Association des Eleveurs de Canards et D'Oies du Quebec, et al v. Harris, et al.
CourtUnited States Court of Appeals for the Ninth Circuit
Full case name Association des Eleveurs de Canards et D'Oies du Quebec, HVFG LLC; Hots Restaurant Group Inc., and Gauge Outfitters Inc. v. Kamala Harris, Attorney General; and Edmund G. Brown, Governor
DecidedAugust 30, 2013 (2013-08-30)
CitationsAssociation des Eleveurs de Canards et D’Oies du Quebec, et al v. Harris, et al., no. 12-56644 (9th Cir. Aug. 30, 2013)
Case history
Prior actionU.S. District Court Judge Stephen V. Wilson denied a motion for preliminary injunction restraining Attorney General Harris from enforcing the California ban on foie gras
Court membership
Judges sittingHarry Pregerson, Raymond C. Fisher, and Wiley Y. Daniel (sitting by designation)
Case opinions
In a unanimous opinion authored by Judge Pregerson, the court held that the Attorney General was not subject to Eleventh Amendment immunity from suit; that the Governor and state of California were entitled to Eleventh Amendment immunity and were dismissed from the suit; and that the district court did not abuse its discretion in finding that there was no serious question of a Due Process violation or a violation of the Commerce Clause, and affirmed the denial of the motion.

A lawsuit was filed in U.S. District Court in Los Angeles on July 2, 2012,[17] seeking to overturn the California foie gras law on the ground that it is unconstitutionally vague.[18] The plaintiffs are two foie gras producers and a southern California restaurant group[19] that served foie gras until the ban took effect.[20] On July 18, 2012, U.S. District Court Judge Stephen V. Wilson denied the plaintiffs' request for a temporary injunction that would have immediately suspended the foie gras ban.[21] On September 19, 2012, Judge Wilson denied the plaintiffs' request for a preliminary injunction against enforcement of the law.[22]

Five animal welfare organizations (the "Proposed Defendant Intervenors") (Farm Sanctuary, Animal Legal Defense Fund, the Marin Humane Society, the Humane Society of the United States, and the Humane Society Veterinary Medical Association) who were sponsors of the challenged law had petitioned to be accepted as defendant intervenors in the case. Judge Wilson denied their petition. On September 7, 2012, the Proposed Defendant Intervenors (the appellants) filed an appeal with the Court of Appeals for the Ninth Circuit.[23] The appellants are appealing Judge Wilson's ruling that excluded them from the case.

Oral arguments on the District Court's denial of the plaintiffs' preliminary injunction were heard on May 8, 2013, before the U.S. Court of Appeals for the Ninth Circuit in Pasadena.[24] In August 2013, the court, in a 3–0 decision, upheld the denial of the preliminary injunction, finding that the law likely violated neither the Due Process Clause nor the Commerce Clause of the U.S. Constitution as asserted by the plaintiffs.[25][26] In January 2014, the Ninth Circuit Court of Appeals denied a request by foie gras proponents to reconsider their challenge to the law.[27]

On January 7, 2015, U.S. District Judge Stephen V. Wilson held on remand that the portion of California's law banning the sale of foie gras within the state (California Health and Safety Code § 25982) was preempted by the federal Poultry Products Inspection Act (PPIA), and enjoined the California Attorney General from enforcing it.[28][7] Judge Wilson's decision was appealed to the Ninth Circuit.[29][30] California's Attorney General, Kamala Harris, argued that the PPIA regulates the ingredients of poultry products, but that the manner in which the birds are fed while alive does not constitute an ingredient and so therefore California's foie gras law is not preempted by the PPIA. On December 7, 2016, the U.S. Court of Appeals for the Ninth Circuit held oral arguments in this appeal in Pasadena. The three-judge panel hearing the arguments consisted of U.S. Circuit Judges Harry Pregerson, Jacqueline Nguyen, and John Owens.[31] On September 15, 2017, the three-judge panel unanimously [8] reversed U.S. District Judge Stephen V. Wilson's January 7, 2015 decision, finding that the California foie gras law is not preempted by the federal Poultry Products Inspections Act.[32][33]

Opponents appealed the three-judge decision to the full Ninth Circuit (for an en banc rehearing),[34] but the Ninth Circuit did not accept that appeal. Opponents then appealed the decision to the U.S. Supreme Court.[9] On January 8, 2019, the Supreme Court declined to review the lawsuit, allowing the ban to take effect.[35]

Resistance to the law

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After the law went into effect on July 1, 2012, a number of restaurants continued to serve foie gras, insisting that they were doing so as a gift to customers rather than selling it to customers.[36][37]

See also

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References

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  1. ^ California Senate Bill no. 1520, Force fed birds, approved September 9, 2004, codified at California Health and Safety Code §§ 25980–25984.
  2. ^ California Health and Safety Code § 25982.
  3. ^ Brown, Patricia Leigh (October 6, 2004). "Is Luxury Cruel? The Foie Gras Divide". The New York Times. Archived from the original on October 4, 2012. Retrieved July 2, 2012. THE signing of a bill by Gov. Arnold Schwarzenegger last week banning the production and sale of foie gras in California
  4. ^ Moore, Martha T. (June 5, 2006). "Foes see foie gras as a fat target". USA Today. Archived from the original on January 8, 2011. Retrieved July 2, 2012. It is already coming off the menu in California, which in 2004 set a 2012 deadline to end production and sale.
  5. ^ "California court okays import of foie gras from out of state, barred in 2012". The Guardian. May 7, 2022. Retrieved May 9, 2022.
  6. ^ Association des Eleveurs de Canards et d'Oies du Quebec v. Harris, No. 12-5735, (C.D. Cal. filed July 2, 2012), Order Denying Defendant's Motion to Dismiss and Granting Plaintiff's Motion for Partial Summary Judgment as to Preemption Claim and Partial Judgment as to Preemption Claim (Jan. 7. 2015).
  7. ^ a b Parsons, Russ (January 7, 2015). "Foie gras can go back on California menus, judge rules". Daily Dish. Los Angeles Times. Retrieved January 7, 2015.
  8. ^ a b Christophi, Helen (September 15, 2017). "C'est la vie: California's Ban on Foie Gras Revived by 9th Circuit". Courthouse News Service. Retrieved September 17, 2017.
  9. ^ a b "Foie Gras Ban Stayed". Courthouse News Service. December 7, 2017. Retrieved March 19, 2018. while producers and supporters of the polarizing delicacy appeal to the U.S. Supreme Court.
  10. ^ Association des Eleveurs de Canards et d’Oies du Quebec, et al., v. Becerra, no. 17-1285 (filed March 13, 2018)(docket).
  11. ^ "Supreme Court ducks fight over foie gras, leaving California ban in place". MSN. Retrieved May 22, 2023.
  12. ^ a b "SB 1520 Complete Bill History". California State Senate. September 29, 2004. Archived from the original on December 11, 2012. Retrieved June 30, 2010.
  13. ^ Barnato, Teri (February 23, 2004). "California Bill Would Ban Force Feeding of Ducks and Sales of Foie Gras; Animal Protectionists Say Practice is Cruel". Viva! USA. Archived from the original on July 1, 2012. Retrieved July 2, 2012.
  14. ^ Macias, Chris (June 25, 2012). "As California ban on foie gras looms, some press for repeal". The Sacramento Bee. The McClatchy Company. ISSN 0890-5738. Archived from the original on July 3, 2012. Retrieved July 2, 2012. We just shouldn't be cramming a tube down a duck's throat and forcing in food to make foie gras
  15. ^ Vekshin, Alison (June 26, 2012). "California Foie Gras Fans Seek to Beat Curb as Ban Begins". Bloomberg Businessweek. ISSN 0007-7135. Archived from the original on June 29, 2012. Retrieved July 4, 2012. The California law had postponed enforcement of the ban for almost eight years to allow producers to find an alternative to force-feeding.
  16. ^ "Foie Battle Kickoff Dinner! (Downtown SJ)". Cupertino, California: Dishcrawl. March 2012. Archived from the original on November 1, 2012. Retrieved November 6, 2012. Chefs from San Jose, Peninsula and San Francisco will be hosting foie gras dinners in undisclosed locations.
  17. ^ Association des Eleveurs de Canards et d'Oies du Quebec v. Harris, No. 12-5735, (C.D. Cal. filed July 2, 2012)
  18. ^ Finz, Stacy; Lucchesi, Paolo (July 3, 2012). "Foie gras ban triggers California lawsuit". San Francisco Chronicle. Archived from the original on July 11, 2012. Retrieved August 24, 2012.
  19. ^   Hsu, Tiffany (July 18, 2012). "Judge denies effort to stop California foie gras ban". Los Angeles Times. Retrieved August 24, 2012.
  20. ^ Pettersson, Edvard (July 18, 2012). "California Foie Gras Ban to Remain in Force, Judge Says". Bloomberg L.P. Archived from the original on July 21, 2012. Retrieved August 24, 2012.
  21. ^ Justia.com Dockets & Filings page
  22. ^ Lifsher, Marc (September 19, 2012). "Judge denies block of California's foie gras ban". Los Angeles Times. Archived from the original on September 20, 2012. Retrieved September 24, 2012. U.S. District Court Judge Stephen Wilson denied a request for an injunction while the lawsuit continues.
  23. ^ Association des Eleveurs de Canards et D’Oies du Quebec, et al v. Kamala Harris, et al., no. 12-56644 (9th Cir. filed Sept. 7, 2012)(docket)
  24. ^ Reynolds, Matt (May 9, 2013). "9th Circuit Urged to Suspend Foie Gras Ban". Courthouse News Service. Archived from the original on January 11, 2015. Retrieved May 9, 2013. Judge Fisher was skeptical, saying the law had only indirect effects on the market for foie gras outside California.
  25. ^ Elias, Paul (September 3, 2013). "Court upholds California ban on foie gras". San Jose Mercury News. Associated Press. Retrieved September 6, 2013.
  26. ^ Association des Eleveurs de Canards et D’Oies du Quebec, et al v. Harris, et al., no. 12-56644 (9th Cir. Aug. 30, 2012)
  27. ^ "Court of Appeals Rejects Bid to Reconsider California's Foie Gras Ban". The Humane Society of the United States. January 27, 2014. Retrieved January 31, 2014. The Ninth Circuit Court of Appeals has denied a request by a handful of foie gras proponents to reconsider their challenge to the law.
  28. ^ Association des Eleveurs de Canards et d'Oies du Quebec v. Harris, No. 12-5735, (C.D. Cal. filed July 2, 2012), Order Denying Defendant’s Motion to Dismiss and Granting Plaintiff ’s Motion for Partial Summary Judgment as to Preemption Claim and Partial Judgment as to Preemption Claim (Jan. 7. 2015).
  29. ^ Pierson, David (February 4, 2015). "California attorney general to appeal reversal of foie gras ban". Los Angeles Times. Retrieved March 16, 2015.
  30. ^ Assoc. des Eleveursde Canards, et al v. Kamala Harris, no. 15-55192, 9th Cir., docket report, retrieved from PACER, March 16, 2015. Accessed July 5, 2017.
  31. ^ Christophi, Helen (December 7, 2016). "Foie Gras Practices Turn Stomachs in Ninth Circuit". Courthouse News Service. Retrieved December 13, 2016.  'Do you think the duck enjoys that?' demanded U.S. Circuit Judge Harry Pregerson at a hearing Wednesday.
  32. ^ Harry Pregerson; Jacqueline H. Nguyen; John B. Owens (September 15, 2017). "Association des Éleveurs de Canards et d'Oies du Québec, et al v. Xavier Becerra" (PDF) (decision). United States Court of Appeals for the Ninth Circuit.
  33. ^ Reischl, Patrick (November 23, 2017). "Fight Over Fowl Livers Continues in California". The Regulatory Review. Retrieved November 23, 2017. California was formerly the second-largest producer of foie gras in the United States.
  34. ^ Posses, Shayna (October 12, 2017). "Full 9th Circ. Asked To Rethink Calif. Foie Gras Ban". Law360. Retrieved March 19, 2018. asked for an en banc rehearing
  35. ^ "'An assault on French gastronomic tradition': US Supreme court upholds foie gras ban". www.thelocal.fr. January 8, 2019. Retrieved January 8, 2019.
  36. ^ Veronin, Nick (July 19, 2012). "Fighting the law with free foie gras: Chez TJ chef believes loophole in new legislation puts restaurant in clear". Mountain View Voice. Embarcadero Media. Retrieved May 21, 2013. The Cupertino-born chef reasons that as long as he is giving the traditional French delicacy away, 'for free,' the restaurant is in the clear.
  37. ^ Noyes, Dan (May 6, 2013). "Bay Area restaurants still selling banned foie gras". ABC7 News. San Francisco. Archived from the original on June 17, 2013. Retrieved May 21, 2013. The ABC7 News I-Team has learned that restaurants around the Bay Area are quietly serving a food that's banned in California -- foie gras, the fatty liver of a duck that's been force fed.
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