33 F.4th 1107
9th Cir.
2022
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Background

  • California enacted a law (Cal. Health & Safety Code §§ 25981–25984) banning force feeding birds to enlarge livers and banning the in‑state sale of products that are the result of that practice (the "sales ban").
  • Foie gras sellers sued; this litigation produced prior Ninth Circuit decisions (Canards I and Canards II) rejecting various preemption and due process challenges. Parties returned to district court seeking to add impossibility and express‑ingredient preemption claims, a dormant Commerce Clause claim, and declaratory relief about whether out‑of‑state internet/phone/fax sales are permitted.
  • The district court dismissed the preemption and dormant Commerce Clause claims, denied leave to amend the express‑ingredient claim, but granted declaratory relief constraining the sales ban to not prohibit certain out‑of‑state sales where title passes outside California.
  • Both sides appealed: California challenged the declaratory judgment (standing and scope), sellers cross‑appealed the dismissals (impossibility preemption, dormant Commerce Clause, and denial of leave to amend).
  • The Ninth Circuit (majority) affirmed: sales ban is not preempted under PPIA (including impossibility and ingredient theories) and does not violate the dormant Commerce Clause; the court also upheld the district court’s narrow construction allowing certain out‑of‑state transactions.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Impossibility preemption under PPIA PPIA and USDA guidance define foie gras as from "specially fed/fattened" (force‑fed); because California forbids sale of force‑fed products, sellers cannot comply with both laws. California: PPIA does not mandate production or sales methods that preclude a state from banning sales; sellers can still produce under federal guidance but may not sell in CA. No impossibility preemption; stopping sales is not the test and the sales ban (a sales restriction) is not a federal process mandate that conflicts with PPIA.
Express ingredient preemption (permission to amend) Sales ban effectively imposes an "ingredient requirement" by banning foie gras (as an ingredient) if produced by force‑feeding; new evidence shows foie gras can only be produced by force‑feeding. California: Circuit precedent (Canards II) held ingredient requirements concern physical components, not husbandry; even a total foie gras ban would not conflict with PPIA. Denial of leave to amend affirmed: Canards II controls; sellers’ new evidence does not overcome binding circuit precedent that §25982 is not an ingredient requirement.
Dormant Commerce Clause — extraterritoriality Sales ban regulates out‑of‑state conduct (production) because it targets force feeding, so it has impermissible extraterritorial effect and burdens interstate commerce. California: statute prohibits in‑state sales only; states may regulate in‑state transactions even if that influences out‑of‑state conduct; legitimate local interest (animal cruelty) outweighs any burden. No dormant Commerce Clause violation: statute is not impermissibly extraterritorial and does not impose a clearly excessive burden relative to local benefits.
Scope of "sale" — online/phone/fax transactions Sellers: out‑of‑state sellers should be able to complete sales to CA buyers when title passes outside CA (server/payment/transfer occur outside state). California AG: the sales ban prohibits sales to CA consumers regardless of processing; district court erred in using UCC title‑pass rules. Held for sellers on declaratory relief: following California Court of Appeal and the UCC, sales occur where title passes; the district court’s narrow construction permitting certain out‑of‑state transactions is proper.

Key Cases Cited

  • Mutual Pharmaceutical Co. v. Bartlett, 570 U.S. 472 (rejecting "stop‑selling" as a cure for impossibility preemption)
  • National Meat Ass'n v. Harris, 565 U.S. 452 (sales bans that effectively command federally regulated operations can be preempted)
  • Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363 (framework for preemption analysis)
  • Pike v. Bruce Church, Inc., 397 U.S. 137 (Pike balancing for dormant Commerce Clause undue burden)
  • South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (dormant Commerce Clause principles on discrimination and undue burden)
  • Ass’n des Éleveurs de Canards et d’Oies du Québec v. Harris (Canards I), 729 F.3d 937 (9th Cir. 2013) (prior Ninth Circuit treatment of sales ban)
  • Ass’n des Éleveurs de Canards et d’Oies du Québec v. Becerra (Canards II), 870 F.3d 1140 (9th Cir. 2017) (held sales ban not an ingredient requirement and not preempted)
  • Chinatown Neighborhood Ass’n v. Harris, 794 F.3d 1136 (9th Cir. 2015) (upholding an in‑state sales ban against dormant Commerce Clause challenge)
  • Daniels Sharpsmart, Inc. v. Smith, 889 F.3d 608 (9th Cir. 2018) (limits on extraterritorial reach of state regulation)
  • Nat'l Pork Producers Council v. Ross, 6 F.4th 1021 (9th Cir. 2021) (extraterritoriality and Commerce Clause analysis)
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