9th Circ. Won’t Rethink Calif.’s In-State Foie Gras Sales Ban (Law360 Subscription Required)

  • As we reported earlier this year, plaintiffs who oppose a 2004 California law, which prohibits the force-feeding of birds to enlarge their livers and bans the in-state sale of foie gras products, indicated that they would request a rehearing en banc after a May 6, 2022 opinion by a split three-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld a 2020 district court ruling that California’s in-state sales ban of foie gras from force feeding is not preempted by federal law under the doctrine of impossibility preemption and does not violate the dormant Commerce Clause of the U.S. Constitution.
  • In an order filed July 1, 2022, the plaintiffs’ petition for panel rehearing and rehearing en banc was denied.  The same judge who accepted the plaintiff foie gras producer and restauranter’s impossibility arguments in the first appeal voted to grant a rehearing.  A majority of the appellate panel, however, voted to deny the plaintiff appellants’ petition for panel rehearing and no judge on the full court requested a vote for en banc consideration.
  • Barring a favorable ruling for the plaintiffs from the U.S. Supreme Court, in the event a writ of certiorari is requested and granted, it is now settled that individual California buyers can legally purchase foie gras from force fed birds only from out-of-state companies by internet, phone or fax.