Association des Eleveurs de Canards et d Oies du Quebec et al v. Kamala J Harris et al

Filing 155

ORDER by Judge Stephen V. Wilson: DENYING DEFENDANT'S MOTION TO DISMISS #116 AND GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO PREEMPTION CLAIM #117 AND PARTIAL JUDGMENT AS TO PREEMPTION CLAIM. 1. For the aforementioned reasons, the Court GRANTS Plaintiffs motion for partial summary and ENTERS JUDGMENT in favor of Plaintiffs on their third cause of action concerning preemption. The Court therefore PERMANENTLY ENJOINS AND RESTRAINS Defendant and her agents, servants, employees, representatives, successors, and assigns from enforcing California Health and Safety Code 25982 against Plaintiffs USDA-approved poultry products containing foie gras. 2. For the aforementioned reasons, the Court DENIES Defendants motion to dismiss.(See order for details). (shb)

1

ban on products containing a constituent that was produced in a particular manner is an

2

“ingredient requirement” under the PPIA.

3

Presently before this Court are Defendant’s motion to dismiss, (Dkt. 116), and Plaintiffs’

4

motion for partial summary judgment as to their preemption claim, (Dkt. 118). For the reasons

5

discussed below, this Court GRANTS Plaintiff’s motion for partial summary judgment and

6

DENIES Defendant’s motion to dismiss.

7

II.

8
9

FACTS AND PROCEDURAL HISTORY
The Canadian Farmers and Hudson Valley produce foie gras—a delicacy made from

fattened duck liver. (Second Amended Complaint (“SAC”) ¶¶ 12–13.) Hot’s operates a

10

restaurant in California that formerly sold foie gras products. (SAC ¶ 14.) Plaintiffs’ foie gras

11

products are produced using gavage—a method of feeding a bird through a tube inserted in its

12

esophagus. See (SAC ¶¶ 44, 80.)

13

California Health and Safety Code § 25982 was enacted as part of a statutory scheme

14

aimed at the practice of force feeding birds. Section 25981, which is not at issue in this case,

15

prohibits force feeding a bird for the purpose of enlarging its liver. Cal. Health & Safety Code §

16

25981. Section 25982 reinforces this ban by prohibiting the sale in California of products that

17

are “the result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal

18

size.”2 Cal. Health & Safety Code § 25982. Section 25980(b) defines “force feeding” as “a

19

process that causes the bird to consume more food than a typical bird of the same species would

20

consume voluntarily.” Cal. Health & Safety Code § 25980. It states that “[f]orce feeding

21

methods include, but are not limited to, delivering feed through a tube or other device inserted

22

into the bird's esophagus.” (Id.)

23

Plaintiffs assert that § 25982 has caused them to lose millions of dollars worth of foie

24

gras product sales in California. (SAC ¶¶ 86–88.) They further assert that the District Attorneys

25

of Los Angeles, Santa Clara, and Monterey Counties threatened to prosecute Hudson Valley and

26

at least two out-of-state distributors of Plaintiffs’ foie gras products for violating § 25982 by

27
2

28

Solely for concision’s sake, the Court abbreviates the sales ban’s scope as “force-fed bird
livers.” The use of this or similar abbreviations throughout this opinion is not meant as a
construction of the statutory language.
2

1

selling foie gras products from outside California to California consumers. (SAC ¶ 89.)

2

Plaintiffs filed this lawsuit on July 2, 2012—the day after § 25982 became operative.

3

(Dkt. 1.) On September 28, 2012, this Court denied Plaintiffs’ motion for a preliminary

4

injunction because Plaintiffs failed to show a likelihood of success on the merits of their

5

vagueness or commerce clause challenges. (Dkt. 87: Order at 11–28.) The Court also rejected

6

defendant Kamala Harris’s (“Harris”) contentions that the Eleventh Amendment barred

7

Plaintiffs’ suit and that the case was not ripe.

8
9

On appeal, the Ninth Circuit affirmed this Court’s determination that Harris is not
entitled to Eleventh Amendment immunity. Association des Éleveurs de Canards et D’Oies du

10

Québec v. Harris, 729 F.3d 937, 943 (9th Cir. 2013). The Ninth Circuit stated in dicta that

11

instead of asserting Eleventh Amendment immunity, “a state official who contends that he or she

12

will not enforce the law may challenge plaintiff’s Article III standing based on an ‘unripe

13

controversy’”—an argument not then before that Court. Id. at 944. The Ninth Circuit also held

14

that § 25982's scope was limited to liver products produced as a result of force feeding a bird for

15

the purpose of enlarging its liver. Id. at 945–46. Finally, the Ninth Circuit affirmed this Court’s

16

holding that Plaintiffs failed to show a likelihood of success on the merits of their due process

17

and commerce clause claims. Id. at 946–53.

18

On April 2, 2014, Plaintiffs filed their SAC. (Dkt. 112.) Plaintiffs’ SAC asserts claims

19

for: (1) declaratory relief regarding the application of § 25982 to imports of foie gras products

20

where the commercial sale of such products takes place and title passes outside of the state of

21

California; (2) declaratory relief that § 25982 is preempted by the PPIA; (3) declaratory relief

22

that § 25982 violates the Commerce Clause because it is an extraterritorial regulation; and (4)

23

declaratory relief that § 25982 violates the Commerce Clause because its substantial burden on

24

interstate commerce exceeds its putative local benefits.3 (Dkt. 112.)

25

III.

26

DISCUSSION
A.

JUSTICIABILITY

27
3

28

Plaintiffs voluntarily dismissed their claims for declaratory relief regarding the application of §
25982 to foie gras products from ducks fed entirely outside of California and under the Due
Process Clause. (Dkts. 123, 128.)
3

1

Defendant argues that the Court should dismiss Plaintiffs’ case under Federal Rule of

2

Civil Procedure 12(b)(1) because Plaintiffs lack Article III standing, because the case is not ripe,

3

and because it fails to present a “case of actual controversy” as required by the Declaratory

4

Judgment Act, 28 U.S.C. § 2201.4

5

1.

6

Legal Standard Under Federal Rule of Civil Procedure 12(b)(1)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the

7

Court’s subject matter jurisdiction to hear the claims alleged. Fed. R. Civ. P. 12(b)(1). A Rule

8

12(b)(1) motion may be asserted either as a facial challenge to the complaint or a factual

9

challenge. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial

10

challenge, the moving party asserts that the allegations contained in the complaint are

11

insufficient on their face to invoke federal jurisdiction. Id.; Warren v. Fox Family Worldwide,

12

Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). When reviewing a facial challenge, the court is

13

limited to the allegations in the complaint, the documents attached thereto, and judicially

14

noticeable facts. Gould Electronics, Inc. v. United States, 220 F.3d 169, 176 (3rd Cir. 2000).

15

The court must accept the factual allegations as true and construe them in the light most

16

favorable to the plaintiff. Id.

17

Regardless of the type of motion asserted under Rule 12(b)(1), the plaintiff always bears

18

the burden of showing that federal jurisdiction is proper. See Kokkonen v. Guardian Life Ins.

19

Co. of America, 511 U.S. 375, 376-78 (1994); Valdez v. United States, 837 F. Supp. 1065, 1067

20

(E.D. Cal. 1993), aff’d 56 F.3d. 1177 (9th Cir. 1995). “In effect, the court presumes lack of

21

jurisdiction until plaintiff proves otherwise.” Schwarzer, Tashima & Wagstaffe, California

22

Practice Guide: Federal Civil Procedure Before Trial § 9:77.10 (Rutter Group 2011) (citing,

23

inter alia, Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989))

24

(emphasis in original). “The proponents of subject-matter jurisdiction bear the burden of

25

establishing its existence by a preponderance of the evidence.” Remington Lodging &

26

Hospitality, LLC v. Ahearn, 749 F. Supp. 2d 951, 955-956 (D. Alaska 2010) (citing United States

27
28

4

While Defendant frames her argument as one of “justiciability,” Plaintiffs’ opposition frames it
as one of ripeness. The Court therefore addresses both ripeness and standing.
4

1

ex rel. Harshman v. Alcan Elec. & Eng'g, Inc., 197 F.3d 1014, 1018 (9th Cir. 1999)).

2

2.

3

Legal Standard Under Article III
a.

4

Standing

“[T]hose who seek to invoke the jurisdiction of the federal courts must satisfy the

5

threshold requirement imposed by Article III of the Constitution by alleging an actual case or

6

controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). In order to have standing

7

to seek injunctive relief, the plaintiff must show “the reality of the threat of repeated injury,” id.

8

at 107 n.8, and a “real or immediate threat . . . that he will again be wronged,” id. at 111. The

9

plaintiff cannot rely on mere “conjecture” or “speculation” regarding a threat of injury. Id. at

10

108.

11

To establish Article III standing:

12

First, the plaintiff must have suffered an injury in fact, the violation of a
protected interest that is (a) concrete and particularized, and (b) actual or
imminent. Second, the plaintiff must establish a causal connection between
the injury and the defendant's conduct. Third, the plaintiff must show a
likelihood that the injury will be redressed by a favorable decision.

13
14
15

Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010) (internal quotations, citations, and

16

alterations omitted).

17
18

b.

Ripeness

The standing inquiry also overlaps with the constitutional and prudential doctrine of

19

ripeness. “[I]njunctive and declaratory judgment remedies are discretionary, and courts

20

traditionally have been reluctant to apply them . . . [except] in the context of a controversy ‘ripe’

21

for judicial resolution.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967). “A claim is

22

not ripe for adjudication if it rests upon contingent future events that may not occur as

23

anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998)

24

(internal quotations omitted). In particular, the doctrine “requires us to evaluate both the fitness

25

of the issues for judicial decision and the hardship to the parties of withholding court

26

consideration.” Abbott Laboratories, 387 U.S. at 149.

27
28

3.

Legal Standard Under the Declaratory Judgment Act

The Declaratory Judgment Act provides that a federal court may issue a declaratory
5

1

judgment in “a case of actual controversy . . . whether or not further relief is sought.” 28 U.S.C.

2

§ 2201(a); MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007). “[T]he phrase ‘case

3

of actual controversy’ in the Act refers to the type of ‘Cases’ and ‘controversies’ that are

4

justiciable under Article III.” MedImmune, 549 U.S. at 126 (quoting Aetna Life Ins. Co. v.

5

Haworth, 300 U.S. 227, 240) (1937)). The test is “whether the facts alleged, under all the

6

circumstances, show that there is a substantial controversy, between parties having adverse legal

7

interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

8

Id. at 127. An actual controversy must exist at all stages of review. Preiser v. Newkirk, 422 U.S.

9

395, 401 (1975).

10

4.

Application

11

The thrust of Defendant’s argument is that the case is not justiciable because she has not

12

personally threatened to prosecute Plaintiffs under § 25982. Instead, the only alleged threats of

13

enforcement were made by county district attorneys—and Defendant claims that their actions

14

cannot be attributed to her. In other words, Defendant argues that Plaintiffs’ claims are not

15

justiciable because they sued the wrong defendant.

16

The California Constitution obligates Defendant “to see that the laws of the State are

17

uniformly and adequately enforced.” Cal. Const. art. V, § 13. Nevertheless, Defendant’s

18

supervisory authority over local district attorneys is somewhat limited. See id.; Cal. Gov. Code §

19

12550. If the Attorney General believes that a district attorney is not adequately enforcing the

20

law, she may step in and institute enforcement proceedings herself. Cal. Const. Art. V, § 13.

21

She may also require district attorneys to make written reports and may take charge of an

22

investigation or prosecution where necessary. Cal. Gov. Code § 12550. However, she does not

23

have the ability to force a district attorney to act or to adopt a particular policy. Goldstein v. City

24

of Long Beach, 715 F.3d 750, 756 (9th Cir. 2013) cert. denied sub nom. Cnty. of Los Angeles,

25

Cal. v. Goldstein, 134 S. Ct. 906, 187 L. Ed. 2d 778 (2014).

26

Nevertheless, the parties do not dispute that under certain circumstances Defendant has

27

the ability to institute enforcement proceedings under § 25982. Moreover, aside from any

28

enforcement authority conferred by the California Constitution, Defendant is at least empowered
6

1
2

to enforce § 25982 by virtue of being a peace officer. (Dkt. 87: Order at 9.)
Defendant seeks to have her pâté and eat it, too. Defendant asserts that she has no

3

present intention to exercise her authority to enforce § 25982. She thus argues that Plaintiffs’

4

claims are therefore not justiciable as to her. However, at the hearing held on July 14, 2014, she

5

refused to stipulate that she would never bring enforcement proceedings under § 25982.

6

Defendant cannot credibly claim that there is no cognizable risk of her prosecuting Plaintiffs for

7

violating § 25982 while simultaneously reserving her right to enforce it.

8

As this Court previously found, Plaintiffs are in the same position as the trappers who

9

challenged California’s ban on certain animal traps and poisons in National Audubon Society,

10

Inc. v. Davis, 307 F.3d 835 (9th Cir. 2002). In Davis, the Ninth Circuit reversed the district

11

court’s holding that the trappers lacked standing because there was no “genuine threat of

12

imminent prosecution.” Id. at 855. The Ninth Circuit first found that the trappers did not need to

13

show a genuine threat of imminent prosecution because their asserted injury was financial loss

14

caused by ceasing certain animal trapping practices to avoid violating the challenged ban. Id. at

15

855–56. The Court next found that several factors indicated that this economic injury was

16

caused by the enactment of the challenged proposition:

17
18
19
20
21
22
23
24
25
26
27
28

(1) the newness of the statute; (2) the explicit prohibition against trapping
contained in the text of Proposition 4 [the challenged law]; (3) the state's
unambiguous press release mandating the removal of all traps banned under
Proposition 4; (4) the amendment of state regulations to incorporate the
provisions of Proposition 4; and (5) the prosecution of one private trapper
under Proposition 4.
Id. at 856. The Court also found that the trappers’ injury was redressable because they would
resume using the banned traps if the proposition was declared unenforceable. Id.
Plaintiffs assert that they have lost millions of dollars because they were forced to either
cease sales of their foie gras products in California or face prosecution. As in Davis, “the
gravamen of [Plaintiffs’] suit is economic injury rather than threatened prosecution.” Id. at 856.
Also as in Davis, Plaintiffs’ injury was caused by § 25982. The statute is relatively
new—it only became effective in July 2012. It expressly prohibits the sale of liver products
produced as a result of force feeding a bird for the purpose of enlarging its liver. Additionally,
local district attorneys have threatened to prosecute Hudson Valley and other similar foie gras
7

1

producers under § 25982. Even assuming arguendo that these threats are not attributable to

2

Defendant, they illustrate the causal relationship between § 25982 becoming operative and

3

Plaintiffs’ economic injury from ceasing sales in California. Moreover, Defendant is both

4

obligated to ensure that § 25982 is adequately enforced and authorized to enforce it herself.

5

Defendant’s recent refusal to stipulate that she won’t enforce § 25982 reinforces the conclusion

6

that a causal relationship exists.

7

Plaintiffs’ injury is redressable. They assert that they sold their foie gras products in

8

California before the sales ban and that they lost significant revenue as a result of stopping.

9

Presumably they would resume their sales if § 25982 were declared unenforceable. Moreover, at

10

the very least a declaratory judgment or injunction against Defendant would prevent her from

11

using her own authority to enforce § 25982 against Plaintiffs. Plaintiffs’ need for certainty that

12

Defendant won’t prosecute them for selling their foie gras products is

13

understandable—particularly given Defendant’s coy reservation of the right to enforce § 25982.

14

Plaintiffs thus have standing to assert their claim.

15

Additionally, this is not a case where more facts surrounding enforcement will assist the

16

Court. Plaintiffs “injury is established, and the legal arguments are as clear as they are likely to

17

become.” Davis, 307 F.3d at 857. In relevant part, Plaintiffs assert that the PPIA preempts §

18

25982. This is purely a question of statutory interpretation; its resolution would not vary based

19

on the specific facts surrounding enforcement. The potential hardship to Plaintiffs also favors

20

adjudication. They will continue to lose revenue by ceasing sales of their foie gras products in

21

California unless and until the sales ban is declared invalid. Plaintiffs’ claim against Defendant

22

is thus ripe. Id.

23

For the same reasons, Plaintiffs satisfy the Declaratory Judgment Act’s “case of actual

24

controversy” requirement. See Valley View Health Care, Inc. v. Chapman, 992 F. Supp. 2d

25

1016, 1042 (E.D. Cal. 2014) (finding declaratory relief appropriate where a state enforcement

26

agency and private entities disputed whether a state law was preempted).

27
28

For the aforementioned reasons, the Court finds that Plaintiffs’ claims are justiciable.
The Court therefore DENIES Defendant’s motion to dismiss Plaintiffs’ complaint under Rule
8

1

12(b)(1).5

2

B.

3

Plaintiffs move for partial summary judgment on their claim that the PPIA preempts §

4

PREEMPTION

25982.

5

1.

6

Legal Standard for a Motion for Summary Judgment

Federal Rule of Civil Procedure 56 requires summary judgment for the moving party

7

when the evidence, viewed in the light most favorable to the nonmoving party, shows that there

8

is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a

9

matter of law. Fed. R. Civ. P. 56(a); Tarin v. County of Los Angeles, 123 F.3d 1259, 1263 (9th

10

Cir. 1997).

11

The moving party bears the initial burden of establishing the absence of a genuine issue

12

of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). On an issue for

13

which the moving party does not have the burden of proof at trial, the moving party may satisfy

14

this burden by “‘showing’—that is, pointing out to the district court—that there is an absence of

15

evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325. Once the moving

16

party has met its initial burden, the nonmoving party must affirmatively present admissible

17

evidence and identify specific facts sufficient to show a genuine issue for trial. See id. at 323-24;

18

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A scintilla of evidence or evidence

19

that is not significantly probative does not present a genuine issue of material fact. Addisu v.

20

Fred Meyer, 198 F.3d 1130, 1134 (9th Cir. 2000).

21

2.

Express Preemption

22

Under the Supremacy Clause of the Constitution, Congress has the power to preempt

23

state law. Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1022 (9th Cir. 2013) cert. denied sub

24

nom. Arizona v. Valle Del Sol, Inc., 134 S. Ct. 1876, 188 L. Ed. 2d 911 (2014). Preemption may

25

be express or implied. See id. Express preemption “arises when the text of a federal statute

26

explicitly manifests Congress's intent to displace state law.” Id. (quoting United States v.

27
28

5

As discussed below, the Court also denies Defendant’s motion to dismiss the complaint under
Federal Rule of Civil Procedure 12(b)(6).
9

1

Alabama, 691 F.3d 1269, 1281 (11th Cir.2012)).

2

The PPIA regulates the distribution and sale of poultry and poultry products. Nat'l

3

Broiler Council v. Voss, 44 F.3d 740, 743 (9th Cir. 1994) (per curiam). This includes foie gras

4

and other products made “wholly or in part from any [goose or duck] carcass or part thereof.”

5

See 21 U.S.C. §§ 453(e) & (f).

6

The PPIA expressly preempts states from imposing:

7

[m]arking, labeling, packaging, or ingredient requirements (or storage or
handling 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] with respect to articles prepared at any official
establishment in accordance with the requirements under this chapter[.]6

8
9
10

21 U.S.C. § 467e. This clause sweeps broadly. See Nat'l Meat Ass'n v. Harris, 132 S. Ct. 965,

11

970 (2012) (finding that the nearly identical preemption provision set forth in the Federal Meat

12

Inspection Act (“FMIA”) sweeps broadly). An “official establishment” is “any establishment as

13

determined by the Secretary at which inspection of the slaughter of poultry, or the processing of

14

poultry products, is maintained under the authority of this chapter.” 21 U.S.C. § 453(p). Thus,

15

the PPIA preempts § 25982 if a sales ban on poultry products resulting from force feeding a bird

16

imposes an ingredient requirement that is in addition to or different than those imposed by the

17

PPIA.

18

Plaintiffs’ foie gras products are prepared at official establishments.7 (Henley Decl. ¶¶

19

3–4; Henley Decl., Exs. A &B; Cuchet Decl. ¶¶ 3–5; Cuchet Decl., Ex. A.) Defendant argues

20

that § 25982 regulates a feeding process occuring before Plaintiffs’ birds enter an official

21
22
23
24
25

6

Another portion of that clause which is not at issue in this case preempts additional or different
requirements “with respect to premises, facilities and operations of any official establishment[.]”
21 U.S.C. § 467e There is also a savings clause permitting states to impose recordkeeping
requirements that are not inconsistent with the Act and to issue regulations “consistent with this
chapter, with respect to any other matters [aside from those expressly preempted] regulated under
this chapter.” Id.
7

26
27
28

The Court rejects Defendant’s assertion that Plaintiffs failed to submit sufficient evidence
showing that their foie gras products are prepared at official establishments. Plaintiffs submitted
testimony that their products are “prepared” at “official establishments” along with United States
Department of Agriculture (“USDA”) approval documents indicating an “establishment number”
and describing the “processing procedures.” (Henley Decl. ¶¶ 3–4; Henley Decl., Exs. A &B;
Cuchet Decl. ¶¶ 3–5; Cuchet Decl., Ex. A.) Taken together, this evidence is sufficient to establish
that Plaintiffs’ foie gras products are prepared at official establishments.
10

1

establishment. Defendant thus asserts that § 25982 does not apply with respect to an article

2

produced at an official establishment. Defendant further argues that § 25982 regulates a process

3

rather than an “ingredient” because it regulates the manner of producing the fattened bird livers

4

rather than the use of a particular ingredient. .

5

The Court recognizes that “[t]he line between regulating the sale of a finished product

6

and establishing product standards will not always be easy to draw. Any finished product can be

7

described in terms of its components or method of manufacture.” U.S. Smokeless Tobacco Mfg.

8

Co. LLC v. City of New York, 708 F.3d 428, 434-35 (2d Cir. 2013). Nevertheless, here the line is

9

clear: Section 25982 expressly regulates only the sale of products containing certain types of foie

10

gras products—i.e. foie gras from force-fed birds.8 Section 25982 does not ban the practice of

11

force feeding; this practice is the subject of a separate provision.

12

Additionally, it does not matter whether foie gras obtained from force-fed birds is a

13

different product from non-force-fed bird foie gras. It is undisputed that the PPIA and its

14

implementing regulations do not impose any requirement that foie gras be made with liver from

15

non-force-fed birds. Thus, Plaintiffs’ foie gras products may comply with all federal

16

requirements but still violate § 25982 because their products contain a particular

17

constituent—force-fed bird’s liver. Accordingly, § 25982 imposes an ingredient requirement in

18

addition to or different than the federal laws and regulations.9 See Nat'l Broiler Council, 44 F.3d

19

at 745 (finding that a California law imposed a labeling requirement in addition to the PPIA

20

where “plaintiffs' members can label [certain specified] poultry products . . . as ‘fresh’ and

21

comply with all federal labeling requirements but not comply with the California Act”); Armour

22

& Company v. Ball, 468 F.2d 76, 83–85 (6th Cir. 1972) (holding that the FMIA’s analogous

23

preemption provision preempted Michigan’s sales ban on Grade 1 sausage containing non-

24
25
26

8

The Court assumes, but does not decide, that foie gras may be produced without force feeding
birds to enlarge their livers. Nevertheless, the Court would find that § 25982 imposes an
ingredient requirement regardless of whether foie gras can be produced without force feeding.
9

27
28

For similar reasons the Court need not address whether the USDA’s definitions and standards
regarding foie gras products set forth in its Standards and Labeling Policy Book or Policy Memo
076 regarding foie gras product standards is admissible. Moreover, the fact that § 25982 is
phrased as a prohibition rather than an affirmative requirement does not exclude it from the
PPIA’s preemptive sweep. See Nat'l Broiler Council, 44 F.3d at 745.
11

1

striated muscle meat because it imposed requirements in addition to or different than the federal

2

requirements).

3
4

a.

National Meat Association v. Harris

Defendant asserts that Plaintiffs’ preemption argument is foreclosed by the Supreme

5

Court’s reasoning in National Meat Association v. Harris. In National Meat the Court

6

considered whether the FMIA preempts California’s statute regulating the treatment and sale of

7

nonambulatory swine. In addressing that issue the Court applied only the first sentence of the

8

preemption clause, which preempts requirements within the FMIA’s scope “with respect to

9

premises, facilities and operations of any establishment . . . in addition to, or different than those

10

made under this [Act].” Nat'l Meat Ass'n, 132 S. Ct. at 969 (quoting 21 U.S.C. § 678)

11

(alterations in original). The California statute at issue barred: (1) selling or buying

12

nonambulatory animals for human consumption; (2) producing meat for human consumption

13

from nonambulatory animals; and (3) selling meat for human consumption from nonambulatory

14

animals. Id. at 970. It also imposed a host of other requirements regarding the treatment of

15

nonambulatory animals. Id. The plaintiff was a trade association representing meatpackers and

16

processors, including operators of swine slaughterhouses. Id.

17

The Court rejected the argument that the statute was not preempted because it applied

18

only to animals that would not be turned into meat. Id. at 973. The Court found that the FMIA’s

19

scope included animals not destined to become meat for human consumption. Id. The Court

20

distinguished cases holding that the FMIA does not preempt bans on slaughtering horses for

21

human consumption, stating that those cases applied “at a [distance] from the sites and activities

22

that the FMIA most directly governs.” Id. at 974. According to the Court, unlike the California

23

statute before it, the horse-butchering bans prevented horses from ever being delivered to,

24

inspected at, or handled by a slaughterhouse. Id.

25

Additionally, the Court considered whether the sales ban on meat from nonambulatory

26

animals avoided preemption because it applied only after the slaughterhouse’s activities

27

concluded. The Court rejected this argument, relying on a functional interpretation of the sales

28

ban as it functioned within the statute as a whole. Id. at 972–73. The Court found that the sales
12

1

ban helped to implement and enforce the statute’s other requirements directly regulating

2

activities on Slaughterhouse’s premises by ensuring that slaughterhouses remove nonambulatory

3

swine from their production process. Id. at 972. The Court thus stated that the sales

4

ban“functions as a command to slaughterhouses to structure their operations in the exact way the

5

remainder of [the California statute] mandates.” Id. at 973. Based on this functional

6

interpretation, the Court found that the sales ban was preempted as an additional or different

7

requirement with respect to the premises, facilities, or operation of an FMIA-covered

8

establishment. Id. According to the Court, if the sales ban weren’t preempted “then any State

9

could impose any regulation on slaughterhouses just by framing it as a ban on the sale of meat

10

produced in whatever way the State disapproved. That would make a mockery of the FMIA's

11

preemption provision.”

12

National Meat’s application to this case is far from clear. On its face, the California ban

13

on sales of meat from nonambulatory pigs appears analogous to California’s ban on sales of foie

14

gras from force-fed birds. Additionally, the need to prevent states from avoiding preemption via

15

strategic legislative drafting applies with equal force to § 25982. Thus, if the nonambulatory pig

16

sales ban is preempted by the FMIA then § 25982 should also be preempted by the analogous

17

PPIA.

18

However, the Court’s functional approach to statutory construction suggests that § 25982

19

should be understood as a ban on force-feeding birds rather than as a sales ban. Under this

20

reading, Defendant might be correct that § 25982 does not impose an ingredient requirement

21

because it regulates a process. If so, then § 25982 would not be preempted.

22

However, this result would turn the Supreme Court’s reasoning on its head: Instead of

23

hindering crafty draftsmanship, this analysis would use a functional approach to enable states to

24

creatively avoid preemption. Under this analysis, any state would be able to avoid preemption of

25

ingredient and labeling requirements by purporting to regulate the process of producing an

26

ingredient rather than directly regulating the ingredient’s use.

27
28

As this discussion illustrates, there is a critical distinction between National Meat and the
case at bar: National Meat considered a different portion of the preemption clause than the one
13

1

here at issue.10 Much of the Court’s analysis relied on the fact that the statute expressly preempts

2

regulations with respect to “premises, facilities and operations” of covered establishments. It did

3

not consider the portion of the FMIA’s preemption clause applicable to ingredient and labeling

4

requirements. Thus, much of the Court’s analysis does not apply to the case at bar.

5

In particular, the distinction that the Court drew between the California nonambulatory

6

animal statute and a horse-slaughtering ban is not helpful in the context of Plaintiffs’ case. It

7

may be true that, like a horse-slaughtering ban, § 25982 regulates only activities that occur apart

8

from official establishments’ operations. However, this fact is irrelevant to the question of

9

whether § 25982 imposes an additional or different ingredient requirement. In contrast to the

10

operations and premises clause, the clause dealing with ingredient and labeling requirements

11

inherently contemplates preempting regulations applicable outside of the operations and facilities

12

of official establishments. By stating that it applies “with respect to articles prepared at any

13

official establishment,” 21 U.S.C. § 467e, the statute makes clear that it applies beyond the

14

activities actually conducted by or at an official establishment.

15

Additionally, unlike in National Meat, § 25982's sales ban appears in a separate statue

16

from the ban on the act of force feeding birds. While this division would be unimportant if it

17

were purely formalistic, Plaintiffs’ case illustrates that the divide is functional. Plaintiffs only

18

assert that the sales ban applies to their foie gras products. They do not challenge the conduct

19

ban, nor do they argue that the conduct ban applies to their force-feeding of birds outside of

20

California. In contrast, the plaintiff in National Meat challenged both the conduct and sales

21

bans, and was apparently impacted by both.11 Thus, unlike in National Meat, it makes little

22

sense here to consider § 25982 alongside § 25981 and thus to interpret § 25982 as the functional

23

equivalent of § 25981's conduct ban.

24

Given this ambiguity regarding whether or how National Meat applies to Plaintiffs’ case,

25
26
27

10

Both the FMIA and PPIA contain preemption clauses with a section applicable to operations
and another applicable to ingredients and labeling. See 21 U.S.C. § 467e; 21 U.S.C. § 678.
11

28

See Nat'l Meat Ass'n v. Brown, 599 F.3d 1093, 1096–97 (9th Cir. 2010) rev'd sub nom. Nat'l
Meat Ass'n v. Harris, 132 S. Ct. 965 (2012) (stating that some of the plaintiff organization’s
members claimed the statute “would prevent the slaughter of approximately 2.5% of their pigs”).
14

1

the Court concludes that the best approach is to apply National Meat’s reasoning to reach a

2

result consistent with the goals that the Supreme Court embraced. The Court therefore

3

concludes that National Meat requires the Court, in deciding Plaintiffs’ express preemption

4

claim, to prevent California from circumventing the PPIA’s preemption clause (or as National

5

Meat said, from “mak[ing] a mockery” of it) through creative drafting. Thus, California cannot

6

regulate foie gras products’ ingredients by creatively phrasing its law in terms of the manner in

7

which those ingredients were produced.

8
9
10

For the aforementioned reasons, the Court finds that the PPIA expressly preempts §
25982. The Court therefore GRANTS Plaintiffs’ motion for partial summary judgment.12
IV.

11

ORDER
1. For the aforementioned reasons, the Court GRANTS Plaintiffs’ motion for partial

12

summary and ENTERS JUDGMENT in favor of Plaintiffs on their third cause of action

13

concerning preemption. The Court therefore PERMANENTLY ENJOINS AND RESTRAINS

14

Defendant and her agents, servants, employees, representatives, successors, and assigns from

15

enforcing California Health and Safety Code § 25982 against Plaintiffs’ USDA-approved poultry

16

products containing foie gras.

17

2. For the aforementioned reasons, the Court DENIES Defendant’s motion to dismiss.

18
19

IT IS SO ORDERED.

20
21

Dated: January 7, 2015

22
STEPHEN V. WILSON
United States District Judge

23
24
25
26
27
28

12

In light of this holding, the Court need not reach any of the other arguments raised in the
parties’ motions.
15