Ninth Circuit Narrowly Upholds Foie Gras Ban

2 Min Read By Pooja S. Nair

On May 6, 2022, a panel of three judges in the Court of Appeals for the Ninth Circuit considered a challenge to California’s ban on foie gras.  The law has been heavily litigated for nine years, including three sets of appeals.

The panel ruled 2-1 that the foie gras ban was not preempted by federal law and did not violate the dormant Commerce Clause.

California Health and Safety Code §25982 provides that “[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 normal size.”  The law was originally passed by the California legislature in 2004 with a 7.5-year enforcement delay.

Two of the three judges on the panel held that California’s foie gras ban was neither a command to market non-force-fed products as foie gras nor to call force-fed products something that would violate federal naming provisions.  Therefore, it was not preempted by federal law.

The majority also held that the ban…