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A California law that bans sales in the state of foie gras made from force-fed ducks or geese isn’t expressly preempted by federal law, the U.S. Court of Appeals for the Ninth Circuit held Sept. 15 ( Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Becerra , 2017 BL 326065, 9th Cir., No. 15-55192, 9/15/17 ).
Foie gras isn’t an “ingredient requirement” regulated by the Poultry Products Inspection Act, the court said in an opinion by Judge Jacqueline H. Nguyen.
Foie gras is a delicacy made from the livers of ducks or geese. To increase the size of their liver, some producers force feed their birds by inserting a tube into their esophagus to deliver large amounts of concentrated food.
California decided force feeding is inhumane and banned it in the state. It also banned sales of foie gras produced out of the state using the practice.
Producers who use force feeding outside of California earlier lost on their claims that the ban violates the due process and commerce clauses, but had amended their complaint to add the PPIA argument.
Foie gras isn’t an “ingredient requirement” because ingredient requirements “pertain to the physical components that comprise a poultry product, not animal husbandry or feeding practices,” the appeals court said.
Judges Harry Pregerson and John B. Owen joined the opinion.
California Attorney General’s Office represented the state. Michael Tenenbaum, of Santa Monica, Calif., represented the producers.
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