California Federal Court Serves Up a Win to Foie Gras Producers

by Michelle C. Pardo

In 2004, after a strong push from animal rights activists, California banned the production and sale of foie gras, a luxury gourmet food and traditional French delicacy that is made from duck or geese liver.   See CA Health & Safety Code, Section 25982 (“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 a normal size.”).  The ban went into effect in 2012.  Years of litigation by a restaurant operator and a coalition of foie gras producers, which challenged the law as vague and unreasonably interfering with interstate commerce, had been unsuccessful.  In 2017, the Ninth Circuit upheld the statute, and last year, the U.S. Supreme Court declined to hear arguments in the foie gras industry’s challenge to the ban.

This week Stephen V. Wilson, U.S. District Court for the Central District of California, granted plaintiffs’ motion for summary judgment and ruled that the ban did not cover the shipment of foie gras by out-of-state producers to California customers. Association des Eleveurs de Canards et d’Oies du Quebec et al. v. Kamala J. Harris, et al. (2:12-cv-05735-SVW-RZ) (C.D. Cal. July 14, 2020).  The plaintiffs included farmers in Canada and New York who produce foie gras as well as a California executive chef.   While legal challenges to enable foie gras to be sold in California restaurants and stores were unsuccessful, the latest legal challenge focused on the factual scenario wherein the foie gras product was sold outside of California and shipped to a customer in California.  The California law was silent as to the possession, importation, or receipt of foie gras within California.  Absent a specific definition in the law, California courts have looked to the UCC provision in the California Commercial Code for guidance on what constitutes a “sale.”  The applicable UCC provision (section 2402(2)) states that title to a good “passes to the buyer at the time and place at which the seller completes his performance.”  Here, plaintiffs argued that the sellers completed their performance upon delivery of the goods to a third-party shipper.

The Court noted that unlike other Health and Safety Code sections that more expansively address the receipt of goods in California (such as Section 25991(o), relating to pig products that defines the “sale” as occurring “at the location where the buyer takes physical possession of an item”), the foie gras law contained no such language.

The Court also found that the text and legislative history of Section 25982 support that California did not intend to create a total ban on foie gras:

“Again, consumption and possession are not mentioned in the statute at all, and all accompanying legislative discussions leading up to the passage of [Section] 25982 suggest that a ‘total ban’ on foie gras was disfavored.”

The Court also reiterated its prior holding that Section 25982 has no extraterritorial effect — California cannot “prevent animal cruelty from occurring in another state.”

The Court concluded that a sale of foie gras does not violate Section 25982 when:

  • The Seller is located outside of California;
  • The foie gras being purchases is not present within California at the time of sale;
  • The transaction is processed outside of California (via phone, fax, email, website)
  • Payment is received and processed outside of California; and
  • The foie gras is given to the purchaser or third-party delivery service outside of California (and the shipper thereafter transports the product to the recipient, even if the recipient is in California).

The Court further stated that its judgment does not encompass situations in which the seller is present in California during the sale or when the foie gras is already present in the California when the sale is made.

This decision is a significant win for plaintiffs, who had collectively lost millions of dollars in sales following the California ban.  While foie gras still cannot be sold in grocery stores or restaurants in California, it permits producers to conduct sales to customers who reside in California without fear of legal liability.  Several animal activist groups, including the Animal Legal Defense Fund (ALDF) and the Humane Society of the United States (HSUS), had sought to file amicus briefs in support of the ban, arguing to the Court that “Plaintiffs’ challenge to the Foie Gras Law seeks to undo years of the Amici’s efforts, and thereby significantly weaken their organizational efficacy in the future.”