Friday, September 15, 2017

Ass'n Des Eleveurs v. Becerra (9th Cir. - Sept. 15, 2017)

In 2004, California passed a law that prohibited force-feeding ducks or geese to produce foie gras (or, more significantly, prohibited sale in California of foie gras produced in this manner.)  The industry was given seven years to transition to a different manner of producing this product.  Predictably, the industry sued.  But although the district court concluded that California's prohibition didn't violate the Due Process or dormant Commerce Clause, after that plaintiffs amended their complaint, the court held that the statute was nonetheless preempted by the federal Wholesome Poultry Products Act.

The Ninth Circuit reverses.  Which should pretty much put an end to both this litigation as well as the sale of foie gras produced in this particular manner.

Judge Nguyen writes a fairly comprehensive and scholarly opinion.  It's worth a read.  You'll likely get other opinions written on the same subject as additional states join the anti-foie gras bandwagon, but this one's a pretty good template for how the analysis will go.

Judge Nguyen does make an interesting observation in upholding California's prohibition.  She says that California's ban on foie gras was inspired in part by California's related ban on horsemeat.  And when it passed the bill, the California Assembly did indeed argue that these provisions are similar in intent.  Judge Nguyen says that "as societal values change, so too do our notions of acceptable food products. Like foie gras, horsemeat was once a delicacy. Today, many states, including California, ban horsemeat because they consider the idea of eating horse repugnant. California, like a growing number of countries around the world, has concluded that forcefed foie gras is similarly repugnant."

All that's right.  Though I think that there's a qualitative difference between the horsemeat and foie gras statutes.  We can horsemeat because -- at a superficial level -- we like horses.  So we think it's disgusting (or "wrong") to eat them.  Or at least to use them directly as food.  The ban is based upon our reaction to the nature of the species.  We like dogs, we like cats, we like horses.  We deal with them all the time.  We societally consider them to have a certain level of sentience or what have you.  So we have a visceral reaction to eating them.

Ducks and geese are different.  We're totally happy to eat them.  (Or at least most of us are, though I personally don't.)  We don't think of them as having the requisite level of sentience or familiarity or whatever it is that puts 'em in the "eating them is disgusting" category.

The prohibition on foie gras is instead based entirely on "unnnecessary or unusually high suffering" grounds.  In other words, the correct analogy is to animal cruelty laws, not species-specific reactions to consuming their flesh.  California banned foie gras -- or this particular manner of foie gras -- for the way in which these animals were killed for food.  A way that, in my mind, at least, does seem to be incredibly cruel:

"Force-feeding commonly requires a worker to hold the bird between her knees, grasp the bird’s head, insert a 10- to 12-inch metal or plastic tube into the bird’s esophagus, and deliver large amounts of concentrated meal and compressed air into the bird. The bird is force-fed up to three times a day for several weeks and its liver grows to ten times the size of a normal liver. This process is [] so hard on the birds that they would die from the pathological damage it inflicts if they weren’t slaughtered first.”

Dude!  Bodily violations so severe that you would literally die of mental distress if they didn't kill you first.  That sounds pretty darn bad, no?

My point is that this isn't like the ban on horsemeat.  We generally don't eat dogs or horses no matter how humanely they're raised or killed for a certain set of social reasons.  Whereas we do eat (at least as a society) ducks and geese if they're humanely raised and killed.  The two are materially different.

Not that any of this matters to the opinion, which is entirely about preemption.

But when we're dealing with an important issue like when our species elects to kill (or not kill) particular other species, I thought it might at least be worth setting the descriptive story straight.