Ass'n Des Éleveurs De Canards Et D'Oies Du Que. v. Becerra

• Decision Date: 15 September 2017
• Docket Number: No. 15-55192.,15-55192.
• Citation: 870 F.3d 1140
• Parties: ASSOCIATION DES ÉLEVEURS DE CANARDS ET D'OIES DU QUÉBEC, a Canadian nonprofit corporation; HVFG, LLC, a New York limited liability company; Hot's Restaurant Group. Inc., a California corporation, Plaintiffs-Appellees, v. Xavier BECERRA, Attorney General, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

870 F.3d 1140

ASSOCIATION DES ÉLEVEURS DE CANARDS ET D'OIES DU QUÉBEC, a Canadian nonprofit corporation; HVFG, LLC, a New York limited liability company; Hot's Restaurant Group. Inc., a California corporation, Plaintiffs-Appellees,

v.Xavier BECERRA, Attorney General, Defendant-Appellant.

No. 15-55192.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2016 Pasadena, California

Filed September 15, 2017

Aimee Feinberg (argued), Deputy Solicitor General; Peter H. Chang, Deputy Attorney General; Constance L. LeLouis, Supervising Deputy Attorney General; Douglas J. Woods, Senior Assistant Attorney General; Edward C. DuMont, Solicitor General; Xavier Becerra, Attorney General; Office of the Attorney General, Sacramento, California; for Defendant-Appellant.

Michael Tenenbaum (argued), The Office of Michael Tenenbaum, Santa Monica, California, for Plaintiffs-Appellees.

Bruce A. Wagman, Schiff Hardin LLP, San Francisco, California; Melissa Grant and Arnab Banerjee, Capstone Law APC, Los Angeles, California; for Amici Curiae Humane Society of the United States, Humane Society Veterinary Medical Association, Animal Legal Defense Fund, Farm Sanctuary Inc., Marin Humane Society, and Mercy for Animals.

Before: Harry Pregerson, Jacqueline H. Nguyen, and John B. Owens, Circuit Judges.

OPINION

NGUYEN, Circuit Judge:

In 2004, California passed legislation to prohibit the practice of force-feeding ducks or geese to produce foie gras, an expensive delicacy made from their liver. California determined that the force-feeding process, which typically involves inserting a 10- to 12-inch metal or plastic tube into the bird's esophagus to deliver large amounts of concentrated food, is cruel and inhumane. The state therefore prohibited force-feeding a bird "for the purpose of enlarging the bird's liver beyond normal size," Cal. Health & Safety Code § 25981, as well as the in-state sale of products made elsewhere from birds force-fed in such a manner, id. § 25982. The legislation does not ban foie gras itself, but rather the practice of producing foie gras by force-feeding. California provided a grace period of over seven and a half years for producers to transition to alternative methods of producing foie gras. Id. § 25984.

On July 2, 2012, the day after the state law took effect, Plaintiffs sued the state of California, challenging only Health and Safety Code section 25982, the provision that bans the sale of products made from force-fed birds. Plaintiffs initially argued that the sales ban violates the Due Process and Commerce Clauses of the U.S. Constitution. After these claims were dismissed, Plaintiffs amended their complaint to allege that the federal Poultry Products Inspection Act (the "PPIA"), which has been on the books for over fifty years, preempts the state provision. The district court concluded that section 25982 is expressly preempted by the PPIA and granted Plaintiffs summary judgment. We reverse and remand.

I. BACKGROUND

Plaintiffs Hudson Valley Foie Gras and the Association des Éleveurs de Canards et d'Oies du Québec raise birds for slaughter and produce foie gras at their facilities in New York and Quebec, respectively; Plaintiff Hot's Restaurant Group is a restaurant in California that sells foie gras.

The foie gras products that Plaintiffs make and sell are produced by force-feeding birds to enlarge their livers. From the day they hatch, the birds undergo a regimented feeding process that lasts for about eleven to thirteen weeks. Ass'n des Éleveurs de Canards et d'Oies du Québec v. Harris (Canards I ), 729 F.3d 937, 942 (9th Cir. 2013). For the first few months, the birds are fed various pellets that are made available to them twenty-four hours a day. Id. Then, for a two-week period, the feeding pellets are available only during certain times of the day. Id. In the final stage of the feeding process, which lasts up to thirteen days, the birds are force-fed in a process called gavage, during which feeders use "a tube to deliver the feed to the crop sac at the base of the duck's esophagus." Id.

A. California's Force-Feeding Ban

In 2004, the California state legislature enacted a statutory framework to end the practice of force-feeding birds to fatten their livers. Cal. Health & Safety Code §§ 25980 – 25984. Section 25981 makes it illegal to force-feed a bird "for the purpose of enlarging the bird's liver beyond normal size." Section 25982, the only provision challenged in this case, prohibits selling a product "in California if it is the result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size." A "bird" is defined to include a duck or a goose, id. § 25980(a), and "force-feeding" is defined as a process by which a bird consumes more food than it would typically consume voluntarily, conducted through methods such as "delivering feed through a tube or other device inserted into the bird's esophagus," id. § 25980(b).

California's law was designed to rectify what the state considered an inhumane feeding practice. See 2004 Cal. Legis. Serv. Ch. 904 (S.B. 1520) (Legislative Counsel's Digest) (seeking to establish provisions for force-feeding birds similar to those already in place for "keeping horses or other equine animals"). According to the legislative analysis of the law, force-feeding commonly requires a worker to hold the bird between her knees, grasp the bird's head, insert a 10- to 12-inch metal or plastic tube into the bird's esophagus, and deliver large amounts of concentrated meal and compressed air into the bird. See, e.g. , Cal. Assemb. Comm. on Bus. & Professions, Analysis of S.B. 1520, 2003–2004 Reg. Sess., at 4–5 (June 20, 2004); Cal. Sen. Comm. on Bus. & Professions, Analysis of S.B. 1520, 2003–2004 Reg. Sess., at 5–6 (May 6, 2004). The bird is force-fed up to three times a day for several weeks and its liver grows to ten times the size of a normal liver. Cal. Assemb. Comm. on Bus. & Professions, Analysis of S.B. 1520, 2003–2004 Reg. Sess., at 5 (June 20, 2004). This process is apparently "so hard on the birds that they would die from the pathological damage it inflicts if they weren't slaughtered first." Cal. Assemb. Comm. on Bus. & Professions, Analysis of S.B. 1520, 2003–2004 Reg. Sess., at 2 (Aug. 17, 2004); Cal. Sen. Comm. on Bus. & Professions, Analysis of S.B. 1520, 2003–2004 Reg. Sess., at 3 (Aug. 25, 2004).

In enacting the force-feeding ban, California also considered a study conducted by the European Union's Scientific Committee on Animal Health and an Israeli Supreme Court decision. The European Union study concluded that force-feeding is detrimental to the welfare of birds, and the Israeli Supreme Court similarly concluded that force-feeding causes birds pain and suffering. Cal. Assemb. Comm. on Bus. & Professions, Analysis of S.B. 1520, 2003–2004 Reg. Sess., at 6–7 (June 20, 2004); Cal. Sen. Comm. on Bus. & Professions, Analysis of S.B. 1520, 2003–2004 Reg. Sess., at 7–8 (May 6, 2004). In light of these and other factors, California decided to enact the ban, joining a growing list of countries around the world.¹

California's legislature intended to ban not foie gras itself, but rather the practice of producing foie gras by force-feeding. The law's author, Senator John Burton, made clear when he introduced the bill that it "has nothing to do ... with banning foie gras" and that it prohibits only the "inhumane force feeding [of] ducks and geese." Then-Governor Arnold Schwarzenegger echoed this sentiment in his signing statement: "This bill's intent is to ban the current foie gras production practice of forcing a tube down a bird's throat to greatly increase the consumption of grain by the bird. It does not ban the food product, foie gras." Signing Message of Governor Arnold Schwarzenegger, Sen. Bill 1520, 2003–2004 Reg. Sess. (Sept. 29, 2004). The legislature provided more than seven and a half years between the passage of the law and its effective date to allow producers to transition to producing foie gras without force-feeding. Id. ; see Cal. Health & Safety Code § 25984(a) (This law "shall become operative on July 1, 2012.").

B. The PPIA

Originally enacted in 1957, the PPIA was intended to ensure that the nation's poultry products "are wholesome, not adulterated, and properly marked, labeled, and packaged." 21 U.S.C. § 451 ; see Food & Water Watch, Inc. v. Vilsack , 808 F.3d 905, 909 (D.C. Cir. 2015) (discussing Congress's intent to protect consumer health and welfare by ensuring that poultry products are "wholesome, not adulterated, and properly marked, labeled, and packaged." (quoting 21 U.S.C. § 451 )). The PPIA accomplishes this goal by, inter alia , authorizing the inspection of slaughterhouses and poultry-processing plants, 21 U.S.C. § 455, setting proper sanitation requirements, id. § 456, authorizing the Secretary of the U.S. Department of Agriculture ("USDA") to establish labeling and container standards, id. § 457, prohibiting the sale of adulterated, misbranded, or uninspected poultry products, id. § 458, establishing record-keeping requirements, id. § 460, and instituting storage and handling regulations, id. § 463. See also Levine v. Vilsack , 587 F.3d 986, 989 (9th Cir. 2009).

In 1968, Congress passed the Wholesome Poultry Products Act, which amended the PPIA "to provide for cooperation with appropriate State agencies with respect to State poultry products inspection programs, and for other purposes." Pub. L. No. 90-492, 82 Stat. 791 (1968); see also H.R. Rep. No. 90-1333, at 2 (1968), reprinted in 1968 U.S.C.C.A.N. 3426, 3426–27. The 1968 amendment also added an express preemption clause to the PPIA, which states that "[m]arking, labeling, packaging, or ingredient requirements ... in addition to, or different than , those made under [the PPIA] may not be imposed by any State." 21 U.S.C. § 467e (emphasis added). At issue here is whether California's ban on products made by force-feeding birds constitutes an "ingredient...