California Shark Fin Soup Ban Upheld

shark fin soupBy Christopher Yeh

After years of legal challenges, shark fin soup is off the menu for good in California.

Shark fin soup is a traditional Chinese dish frequently served as a luxury item at special occasions such as weddings.  It’s a controversial menu item because some fishermen harvest the fins by catching sharks, slicing off the fins, then tossing the shark back in the ocean.   This practice, called “finning,” leaves the shark unable to swim, causing it either to starve to death or fall prey to predators.  Certain shark species require water to move through their gills constantly, so without the ability to swim, they asphyxiate.

Because of this brutal and wasteful fishing practice, the Federal Government enacted the Shark Finning Prohibition Act,  which prohibits this type of fishing.  (See 18 U.S.C. § 1857(1)(P), (R).)  The Act bars the possession or transfer of shark fins on and between fishing vessels, but it does not prohibit the possession or sale of shark fins after they’ve found their way to land.  In 2011, California took it a step further by banning the possession and sale of shark fins altogether. (Cal. Fish & G. Code §§ 2021, 2021.5.)  The law took effect in July 2013 and with a few exceptions, made shark fin soup illegal in California.

Asian-American groups and fish merchants challenged the California law in federal district court, claiming that it discriminated against the Asian-American community, put people out of work, and was preempted by Federal law.

sharkTheir challenge failed. In 2014, the district court ruled that the Shark Fin Law is “facially neutral,” and that plaintiffs presented no persuasive evidence indicating that the California legislature’s real intent was to discriminate against Asian-Americans rather than to accomplish the Law’s stated “humanitarian, conservationist, and health goals.”  (Chinatown Neighborhood Ass’n v. Harris, 33 F. Supp. 3d 1085, 1097 (N.D. Cal. Mar. 24, 2014).)

In 2015, the Ninth Circuit Court of Appeals agreed, and upheld the California law.  (Chinatown Neighborhood Ass’n v. Harris, 794 F.3d 1136 (9th Cir. 2015). )

On May 23, 2016, the U.S. Supreme Court denied cert to review the Ninth Circuit’s ruling, thereby leaving the lower court’s decision in place and ending the plaintiffs’ case against the California law. (Chinatown Neighborhood Ass’n v. Harris, 2016 U.S. LEXIS 3464 (U.S., 2016).)

California’s ban is part of larger trend among states to ban the ingredient.  Although this decision means the end of authentic shark fin soup in California, chefs have found ways to replace the ingredient with more sustainable alternatives.

Photo credits:  Brockten Inaglory, Audrey from Seattle (Wikipedia).

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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