The Volokh Conspiracy

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Volokh Conspiracy

Force-fed geese and the Constitution


In a decision that I suppose is welcome news to California gourmets, and less welcome to those who find loathsome and grotesque the notion of force-feeding animals, the Central District of CA has declared that a California law prohibiting the sale, in California, of products that are "the result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size," (2 Cal. Health & Safety Code § 25982)—i.e. much (though not all) foie gras—is pre-empted by the federal Poultry Products Inspection Act. [The opinion is posted here]

The PPIA regulates the distribution and sale of poultry and poultry products, [including] foie gras and other products made "wholly or in part from any [goose or duck] carcass or part thereof." The PPIA expressly preempts states from imposing: [m]arking, labeling, packaging, or ingredient requirements [that] unduly interfere with the free flow of poultry products in commerce in addition to, or different than, those made under this chapter [the PPIA].

The question, then, was: was the California law an "ingredient requirement" that was different than the requirements contained in the PPIA. The court held that it was:

Section 25982 expressly regulates only the sale of products containing certain types of foie gras products- i.e. foie gras from force-fed birds. Section 25982 does not ban the practice of force feeding; this practice is the subject of a separate provision. Thus, Plaintiffs' foie gras products may comply with all federal requirements but still violate § 25982 because their products contain a particular constituent-force-fed bird's liver. Accordingly, § 25982 imposes an ingredient requirement inaddition to or different than the federal laws and regulations.

Pretty straightforward—though as is often the case with pre-emption decisions, it does make one wonder whether this is the sort of thing that needs to be dealt with at the national level, and whether it is wise public policy to deprive the people of California from control over the kind of poultry that is sold in the state. Incidentally, the statute defined "force feeding" as "a process that causes the bird to consume more food than a typical bird of the same species would consume voluntarily." It states that "[f]orce feeding methods include, but are not limited to, delivering feed through a tube or other device inserted into the bird's esophagus."