This blog has previously discussed California’s ban on foie gras.
When teaching WTO law at Stanford in 2012 -- the year the ban entered into force -- I even used the ban as my mid-term exam question!
Turns out that on January 7, a US district court judge passed summary judgment against the ban, which has now been lifted.
The ban was struck down not on “commerce clause” grounds, but based on “preemption”. Essentially, according to Judge Wilson -- who apparently enjoys his foie gras, calling it “a delicacy made from fattened duck liver” -- the Poultry Products Inspection Act or PPIA (a US federal statute) already covers the field. Hence, California can no longer regulate the matter.
Trade lawyers may think this is pure US constitutional law. But there is an intriguing WTO, product v. process, angle to it. To decide whether the federal statute covers the California ban, the central question was: “whether a sales ban on products containing a constituent that was produced in a particular manner is an ‘ingredient requirement’ under the PPIA”.
Indeed, the PPIA only preempts California from imposing additional or different “marking, labeling, packaging, or ingredient requirements” with respect to poultry products. So the PPIA only "preempts" in case "a sales ban on poultry products resulting from force feeding a bird imposes an ingredient requirement”.
California argued that its ban “regulates a process rather than an ‘ingredient’ because it regulates the manner of producing the fattened bird livers rather than the use of a particular ingredient” (California allowed the sale of liver from non-force-fed birds).
Judge Wilson disagreed: the ban “expressly regulates only the sale of products containing certain types of foie gras products – i.e. foie gras from force-fed birds”; it “does not ban the practice of force-feeding; this practice is the subject of a separate provision … it does not matter whether foie gras obtained from force-fed birds is a different product from non-force-fed bird foie gras … Plaintiffs’ foie gras products may comply with all federal requirements but still violate [the California ban] because their products contain a particular constituent – force-fed bird’s liver … California cannot regulate foie gras products’ ingredients by creatively phrasing its law in terms of the manner in which those ingredients were produced”.
This should remind WTO observes of the question of whether a ban on foie gras, i.e. force-fed bird liver, is sufficiently product related to fall under GATT Article III or whether it lays down “product characteristics or their related processes and production methods” for the ban to be subject to the TBT Agreement. The AB in Tuna found the (process) requirements under the US dolphin-safe label sufficiently product-related for them to fall under TBT; in Seal, the EU seal ban and its indigenous communities exemption was found to fall under GATT Article III but not to lay down a “product characteristic” and TBT was not applied.
Interestingly, being product related generally helps for the WTO consistency of a measure (e.g. making it subject to GATT Article III and border adjustable, plus more easily justified under the open list of legitimate objectives under TBT); under the preemption of the PPIA, in contrast, being a "process" and not an “ingredient" requirement would have saved California's ban ...
The other thing this Order shows is that even rulings on technical matters like these can be written in intelligible, concise language (15 pages, only 6 on the preemption issue). Judge Wilson's first sentence: “This action … touches upon a topic impacting gourmands’ stomachs and animal-rights activists’ hearts: foie gras”. At another juncture: “Defendant seeks to have her pâté and eat it, too” …
