France Urges Supreme Court To Overturn California’s Foie Gras Ban

lawrence ebner amicus brief republic of france preemption

I recently had the honor of authoring an amicus brief for the Republic of France relating to federal preemption and France’s product identity and ingredient standards.

French law declares that foie gras (specially fattened duck or goose liver) is part of France’s “protected cultural and gastronomic heritage.” To produce foie gras, ducks and geese are “force fed” by gavage. To ensure the authenticity of foie gras sold in the United States, even if produced domestically, the U.S. Department of Agriculture (USDA) long ago agreed, at France’s request, to adopt France’s foie gras product identity and ingredient standards. Under the federal Poultry Products Inspection Act (“PPIA”), a State is expressly preempted from imposing poultry product ingredient requirements that are “in addition to, or different than” USDA’s requirements.

But in 2004 California enacted a statute, with a 2012 effective date, banning the production and sale of foie gras “if it is the result of force-feeding.” U.S. and Canadian foie gras producers challenged the California sales ban in court. A California federal district held that the state law is preempted, but a Ninth Circuit panel reversed. Now the producers are asking the U.S. Supreme Court to hear their appeal.

The Republic of France has filed an amicus curiae brief urging the Court to review the preemption issue and reverse the Ninth Circuit (which stayed its judgment pending Supreme Court review). France’s brief, authored by Capital Appellate Advocacy founder Lawrence S. Ebner, explains that the California prohibition against sale of force-fed foie gras is “an assault on French tradition.”  The brief argues that the California statute not only is expressly preempted by the PPIA, but also impliedly preempted because it undermines USDA’s ability to maintain nationally uniform, poultry product ingredient requirements. Read France’s amicus brief here.

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