by John M. Simpson.
On September 18, 2018, the Los Angeles City Council unanimously approved a motion that directs the City Attorney to prepare a city ordinance whose proponents believe will prohibit the manufacture and sale of fur products within the City of Los Angeles. Although hailed as a “fur ban” by animal activists, the actual Council action was the approval of a motion that directs the City Attorney to:
“prepare and present an Ordinance to which [sic] would prohibit the manufacture and sale of fur products, including apparel made in whole or in part of fur, or any fashion accessory, including but not limited to handbags, shoes, hats, earmuffs, jewelry and key chains made in whole or in part of fur, with exceptions for the sale of used fur products with a phasing-out period of 24 months from the effective date of the Ordinance.”
The Council also directed the City Attorney to report on the following subjects:
“a. Utilization of fur apparel by religious organizations and related religious aspects and potential exemptions.
b. Prohibiting the sale of faux fur that utilizes the fur of an animal(s) and methods to certify the origin of said faux fur.
c. Potential conflicts with Federal and State laws as they relate to the sale of fur products.”
Thus, the details of the actual ordnance remain to be worked out. To become law, the ordinance will have to be approved by the Council and signed by the Mayor.
One of the most significant issues to be considered as the proposed law moves forward is the extent to which this city ordinance would conflict with federal or state law. At the federal level are potential “dormant commerce clause” issues which can arise with respect to state or local laws that attempt to prohibit the sale of items manufactured elsewhere and shipped into the state which has the ban. But apart from a potential federal constitutional conflict, a report by the Chief Legislative Analyst (CLA) noted a conflict with California state law. The three other California localities with fur bans (West Hollywood, Berkeley and San Francisco) all have exclusions for fur products made from trapped animals. This is because the California Fish and Game Code “allows the purchase and sale of products or handicraft items made from furbearing mammals and nongame mammals lawfully taken under the authority of a trapping license.” See Cal. Fish & Game Code, § 3039(b) (“Products or handicraft items made from furbearing mammals and nongame mammals lawfully taken under the authority of a trapping license may be purchased or sold at any time”). A ban on fur items coming within this exclusion would require an amendment to the Fish & Game Code which the Council does not have the authority to do.
The CLA also noted that, given the trapping exemption in the Fish & and Game Code, “[o]ne particularly difficult feature of enforcing the ban” will be traceability: “The City of Los Angeles would have to come up with a verification process to ensure that fur products are made from fur harvested from animals that were trapped legally within the State of California.” In this regard, it should be noted that the plain language of the Fish & Game Code exclusion is not limited to fur taken pursuant to a California trapping license.
The CLA’s report identified several other issues, including what constitutes “fur” (including whether to include sheepskin and lambskin), whether there should be a prohibition on the display of fur products to be sold in neighboring localities, and the necessity of a “well-defined appeal process.”
The CLA report includes a chart outlining the ways in which the other three California jurisdictions’ existing laws vary from each other. The Los Angeles’ measure adds a fourth municipal measure to the list with potentially different provisions.
The CLA also commented on the economic impact of the proposed ban, noting that, while the Office of Finance does not keep track of fur sales specifically, the 2012 Economic Census indicated that total retail sales for the product category “Furs and Fur Garments” was “$0.36 billion in California,” i.e., $360,000,000, and that the State Board of Equalization reports that statewide taxable sales of all outlets, including “Furs and Fur Garments,” totaled “$558.39 billion in 2012,” i.e., $558,390,000,000.