9th Cir.;

The court of appeals reversed a judgment and remanded. The court held that federal law did not preempt California state law banning the sale of foie gras produced by the force-feeding of ducks or geese.

In 2004, California passed legislation to prohibit the practice of force-feeding ducks or geese to produce foie gras, as well as the in-state sale of products made elsewhere from birds force-fed in such a manner. Plaintiffs, an association of Canadian duck and geese farmers that produce foie gras and a California restaurant that sells foie gras, filed suit challenging Cal. Health & Saf. Code §25981, which bans the sale of products from force-fed birds, arguing it was preempted by the Poultry Products Inspection Act (PPIA).

The district court granted summary judgment in favor of plaintiffs, finding §25982 was expressly preempted by the PPIA.

The court of appeals reversed, holding that the PPIA neither expressly nor impliedly preempted §25982. At issue was that provision of the PPIA, codified at 21 U.S.C. §467e, barring states from issuing “marking, labeling, packaging, or ingredient requirements…in addition to, or different than” those under the PPIA. Section 25981 does not impose a preempted “ingredient requirement.” The difference between foie gras produced with force-fed birds and foie gras produced with non-force-fed birds is not one of ingredient. Rather, the difference is in the treatment of the birds while alive. “Force-fed” is not a physical component found in poultry; it is a feeding technique. Plaintiffs’ claims of field and obstacle preemption were similarly unavailing.