Foie Gras Could Be Shipped Again to California,

so long as it's shipped to California by an out-of-state seller (and certain other conditions are met).

|The Volokh Conspiracy |

The California foie gras statute provides,

A product may not be sold in California if it is the result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size.

Today, in Association des Eleveurs de Canards et D'Oies du Quebec v. Harris (C.D. Cal.), Judge Stephen V. Wilson interpreted this not to include situations where

  • The Seller is located outside of California.
  • The foie gras being purchased is not present within California at the time of sale.
  • The transaction is processed outside of California (via phone, fax, email, website, or
  • Payment is received and processed outside of California, and
  • The foie [gras] is given to the purchaser or a third-party delivery service outside of
    California, and "[t]he shipping company [or purchaser] thereafter transports the product to the recipient designated by the purchaser," even if the recipient is in California.

UPDATE 7/15/2020 10:20 am: I originally wrote, foie gras "could be on the menu," but I realize now that this suggests that it could be distributed further by restaurants, and some news accounts so suggest; but, just to be clear, the decision expressly deals with people receiving it in California, and not with people further reselling it: "No relief is offered, for instance, 'to sellers of Hudson Valley's and Palmex's foie gras products who are located within California (e.g., restaurants) [who] have been forced to stop selling them to purchasers in California ….'"

So the key beneficiaries of this particular decision are people who buy this for their own homes (and those who sell remotely to them), or for catered corporate and organizational events where one can plausibly say that the foie gras isn't being further "sold" in California. Query whether restaurants would also be able to distribute the foie gras as a supposedly free "amuse bouche" add-on to an expensive meal, which some restaurants have apparently done.

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  1. Meh.

    Cannabis that was grown within a State, never crossed a State border, and was not sold, is still cannabis rendered Federally illegal in interstate commerce.

    1. I think your argument would be more persuasive if California banned possession of Foie Gras. In fact, they probably could amend their statue to do just that if that was their intended result. This ruling is that the statute did not intend that result because it specifically focused on sales.

  2. What’s sauce for the goose is sauce for the gander.

    1. Hmm … I’m sure someone can come up with a good dormant commerce clause argument with this ruling to expand the ability to sell fois gras in California.

      But it’s a good illustration of the difficulties of having purely state based consumer economic regulation in a digital world.

      How easy would it be to set up a shipping company just outside of California in Nevada for the sole purpose of getting around stupid California regulations? I mean, someone has probably done it, right?

      1. Is that even a problem though? That’s like saying that Vegas is an end run around onerous anti-gambling laws in the rest of the country. If people are purchasing from out of state, California doesn’t have any right in any context to say people can’t. They don’t own their citizens.

        1. A number of states have laws that void gambling debts of their residents, no matter where in the world those debts occurred, they can not be legally collected. This includes credit card purchases made at casinos.

        2. California can still ban products within its borders, even if they were shipped there from somewhere else. If possession of marijuana is a crime in your jurisdiction, it’s still illegal even if you bought it someplace where pot was legal and had it shipped in.

        3. They don’t own their citizens.

          Looking at what I pay in SALT suggests that California’s legislature didn’t get that memo.

      2. Aladdin’s Carpet — “du Quebec” translates to “of Quebec” and “Association des Eleveurs de Canards et d Oies du Quebec” makes me think the plaintiffs are Canadians.

        While the court doesn’t mention it, that would bring in NAFTA and/or whatever Trump replaced it with. I think that’s a big factor here as treaty trumps state law.

        Now as to setting your shipping company up in British Columbia and hauling your product through customs twice, well….

        1. The treaty trumps state law in the respect that CA can’t place a tariff on goods imported from Quebec, but I’m pretty sure federal law already prohibits that anyway. The treaty doesn’t make any guarantees about being able to import and sell an illegal product. For example treaty doesn’t allow gun stores to sell guns in Canada that would otherwise be illegal there

          The court decision seems to hinge on the definition of “sold in California” and determined that remote sales (mail order, phone, or internet) take place legally outside of CA, and are thus not subject to the ban

          Also setting up a shipping company in BC wouldn’t trigger double customs, as moving the product from Quebec to BC is still within Canada 🙂

          1. “The court decision seems to hinge on the definition of “sold in California” and determined that remote sales (mail order, phone, or internet) take place legally outside of CA, and are thus not subject to the ban”

            This seems to conflict with the way they’re now being handled for tax purposes, with online retailers being forced to collect sales taxes.

            1. Perhaps, I suppose a way around the contradiction is that a sales tax is a tax on the purchaser of a product, so the location of the purchaser is what matters, while the foie ban is a ban on the sale, so the location of the seller is what matters

              1. That makes sense in terms of payment of the tax, which was theoretically required of purchasers all along, with it being handled by the seller as only a convenience. In theory, if you drive to a neighboring state, buy something in person, and then drive home, you should be paying your state’s sales tax on it. That’s the case here in South Carolina, at least, though it’s not really enforced except for items like cars, where avoiding telling the state you bought it is difficult.

                In theory. In theory, every kid running a lemonade stand is committing a crime if they don’t collect sales tax.

                1. Its similar in IL, they have a separate “use tax” which you are supposed to pay annually with your income taxes for items purchased out of state for use in IL

              2. “Perhaps, I suppose a way around the contradiction is that a sales tax is a tax on the purchaser of a product, so the location of the purchaser is what matters,”

                Massachusetts has a 6.25% sales tax while New Hampshire, just 20 miles up I-93, has none. But MA residents are supposed to report & pay the sales tax on NH purchases on their MA state tax returns.

                BTW — the “clearing customs twice” was CA to BC to CA much like how Maine lobsters are *still* going to China — they go to Halifax, NS and then fly back to Boston as bonded cargo and are transferred to airplanes going to China.

      3. But it’s a good illustration of the difficulties of having purely state based consumer economic regulation in a digital world.

        Kevin Smith brings this up but more on it. I fail to see how this is brand new and due to the internet and online ordering. This same ruling would apply to the old Sears Catalog and mail order anything.

        Straight up, I think this ruling should hold as it seems a proper interpretation of the Interstate Commerce Clause.

  3. This is a very stupid statute.

    This is a very disingenuous interpretation of the statute.

    1. As far as I know its not its not illegal to eat foie gras (how often has the mere act of eating something been made illegal outside of maybe cannibalism). So they can only ban the production. Maybe they can go further to prevent restaurants from serving it if the Petaphiles continue to harp on them.

      1. I believe banning restaurants from serving it is what statute is intended to do.

        I suppose a restaurant could give it away for free and won’t be a “sale” per the law, but foie gras isn’t exactly soup, salad, and breadsticks

        1. A few years ago I had the tasting menu at a high end restaurant in Napa and was served a foie gras amuse-bouche “compliments of the chef”. There was no hint it was going to be served and I was not charged extra for it. I happen to love foie gras and was extra delighted that the restaurant figured out how to get around this piece of California law.

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  5. I’m reminded of a story from my late father, who was from Arkansas. He was in New York decades ago, and on something of a whim, he decided to purchase a car that caught his eye on a sales lot. The salesman told him he could waive the state sales tax, but that my father would have to take delivery out of state. So, they do the paperwork, and with the salesman driving and my dad in the passenger seat, they drive off the lot. The salesman drives around the corner, stops the car, and hands my dad the keys. Dad asks what going on. The salesman replies, “You don’t really want to go to New Jersey, do you?”

  6. If causing suffering to living creatures should be illegal, can I ban the California Legislature?

  7. It sounds like the phrase “sold in California” is being construed narrowly, given that the statute does not prohibit transporting too
    and consuming in California once the actual sale has occurred elsewhere. And perhaps the statute did not envision the world of the internet, which makes it very easy for an out-of-state company to transact an out-of-state sale with a California resident.

    I would note that laws of this kind are a classic example of morals legislation. States can permissibly have morals legislation. Their interest in it is rational but not compelling. And judges should be consistent and neutral about this, neither striking down morals legislation they happen to disagree with as irrational, nor finding a compelling state interest in morals legislation they happen to agree with very strongly.

    1. Can California ban other states from producing or selling a product outside of its borders? I would say that trying to do so would make any such law unconstitutional, so this interpretation of the law is the only valid one that can be made without requiring the law be struck down in its entirety.

      1. They can ban possession of a product within the state, as well as transporting it over state lines into the state.

        But no, they cannot ban others from producing or selling the product out of state, nor can they (technically) ban CA residents from purchasing the product out of state (with a few exceptions, like guns, in which the GCA of 1968 gives federal power to state laws regarding gun sales)

      2. If the law were written more broadly, it could prevent this. For example, the law could prohibit possessing it in California, not just selling it. Not a constitutional issue, just a statutory language one.

      3. “Can California ban other states from producing or selling a product outside of its borders”

        It can (does) use its market share to impose national standards — my bottle of Gatorade some 3000 miles away is labeled “CA CRV” and lots of things tell me that they “contain a chemical known to the State of California to cause cancer.”

        A good example is the influence of CA (TX, & FL) on the content of K-12 textbooks nationally. Yes, a separate version for Iowa could be produced, but it’s a whole lot cheaper to just sell everyone the California version.

  8. Isn’t the person eating it a purchaser?

    1. No one ever gives you gifts? Invites you over for a meal? Buys groceries for the rest of the family to share?

      There are lots of ways to get food to eat without personally purchasing it.

  9. Perfect!! Now if I can just find an open restaurant in California…..

  10. So the people AK calls our “betters” are so concerned about our moral well being they wasted significant resources in banning a particular food type. This is what happens when you vote Dem folks.

    1. Jimmy,
      Seems like a perfectly reasonable thing for a legislature to do. I assume you’d be against a law banning cockfighting or organized dog fights. I mean, those laws affect only a tiny tiny fraction of animals and are enacted (1) to protect those few animals, but also (2) to reaffirm that we are not a sick evil society that glorifies the needless slaughter of innocent animals in an activity that appeals to sick fucks.

      If you accept those as worthy goals (or, at least, accept that they’re goals that a reasonable number of citizens consider worthy), then banning this food product seems analogous. Not a perfect analogy, but close enough for government work.

  11. So a California restaurant can identify “acceptable” online sources for foie gras. You make the reservation, you buy the specified foie gras online for delivery to the restaurant with a notation that includes your “Reservation Confirmation Number”. You show up at the restaurant and remind the waitstaff that you’ve had foie gras delivered and you want it prepared. The waitstaff reminds you that your bill will include a “Foie Gras Preparation Fee” (much like a corkage fee). Everyone is happy.

    Of course, you will have to eat outside for the moment…

  12. I don’t understand why the defendants didn’t move to strike. The plaintiffs’ papers in this case make it very clear that their entire activities in this case consist of nothing more than raising canards by association. This is hardly a legitimate use of the federal courts. You’d expect the defendants would have brought this to the judge’s attention. It’s blantantly obvious from the face of their papers. Their frenchified language doesn’t even try to conceal this.

  13. On a more serious note, what is the value of a going to a federal court to get a declaratory judgment on a question of pure state law? California’s court’s are not bound by it. Even if it applies to this specific Quebec association, this judgment does not prevent other people, not oarties to the judgment, from being prosecuted for it if they by buy from it.

    If they had wanted something that would have provided California buyers with any reassurance, they should have gone to state court.

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