Association Des Éleveurs De Canards Et D'Oies Du Québec v. Becerra ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASSOCIATION DES ÉLEVEURS DE No. 15-55192
CANARDS ET D’OIES DU QUÉBEC, a
Canadian nonprofit corporation; D.C. No.
HVFG, LLC, a New York limited 2:12-cv-05735-
liability company; HOT’S SVW-RZ
RESTAURANT GROUP. INC., a
California corporation,
Plaintiffs-Appellees, OPINION
v.
XAVIER BECERRA, Attorney General,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted December 7, 2016
Pasadena, California
Filed September 15, 2017
Before: Harry Pregerson, Jacqueline H. Nguyen,
and John B. Owens, Circuit Judges.
Opinion by Judge Nguyen
2 ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA
SUMMARY *
Preemption / Poultry Products Inspection Act
The panel reversed the district court’s grant of summary
judgment in favor of plaintiffs who challenged California
Health and Safety Code § 25982, a provision that bans the
sale of products made from force-fed birds, such as foie gras;
vacated the district court’s permanent injunction; and
remanded for further proceedings.
The panel rejected plaintiffs’ express preemption
argument - that California’s sales ban was expressly
preempted because the Poultry Products Inspection Act
(“PPIA”) prohibited states from imposing “ingredient
requirements” that were “in addition to, or different than,”
the federal law and its regulations. 21 U.S.C. § 467e. The
panel held that section 25982 was not expressly preempted.
Specifically, the panel held that the ordinary meaning of
“ingredient” and the purpose and scope of the PPIA made
clear that “ingredient requirements” pertain to the physical
components that comprise a poultry product, not animal
husbandry or feeding practices. The panel held that
California law did not impose a preempted ingredient
requirement, and section 25982 was not preempted by the
PPIA even if it functioned as a total ban on foie gras.
The panel also rejected plaintiffs’ arguments that the
PPIA impliedly preempted section 25982 under the
doctrines of field and obstacle preemption. First, under the
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA 3
doctrine of field preemption, states are precluded from
regulating conduct in a field that Congress has determined it
will regulate. The panel held that because the PPIA itself
contemplated extensive state involvement, Congress clearly
did not intend to occupy the field of poultry products.
Second, obstacle preemption occurs where state law stands
as an obstacle to the purposes and objectives of Congress.
The panel held that plaintiffs failed to explain how section
25982 stood as an obstacle to the PPIA’s objectives of
ensuring that poultry products are “wholesome, not
adulterated, and properly marked, labeled, and packaged.”
21 U.S.C. § 451.
COUNSEL
Aimee Feinberg (argued), Deputy Solicitor General; Peter
H. Chang, Deputy Attorney General; Constance L. LeLouis,
Supervising Deputy Attorney General; Douglas J. Woods,
Senior Assistant Attorney General; Edward C. DuMont,
Solicitor General; Xavier Becerra, Attorney General; Office
of the Attorney General, Sacramento, California; for
Defendant-Appellant.
Michael Tenenbaum (argued), The Office of Michael
Tenenbaum, Santa Monica, California, for Plaintiffs-
Appellees.
4 ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA
Bruce A. Wagman, Schiff Hardin LLP, San Francisco,
California; Melissa Grant and Arnab Banerjee, Capstone
Law APC, Los Angeles, California; for Amici Curiae
Humane Society of the United States, Humane Society
Veterinary Medical Association, Animal Legal Defense
Fund, Farm Sanctuary Inc., Marin Humane Society, and
Mercy for Animals.
OPINION
NGUYEN, Circuit Judge:
In 2004, California passed legislation to prohibit the
practice of force-feeding ducks or geese to produce foie gras,
an expensive delicacy made from their liver. California
determined that the force-feeding process, which typically
involves inserting a 10- to 12-inch metal or plastic tube into
the bird’s esophagus to deliver large amounts of
concentrated food, is cruel and inhumane. The state
therefore prohibited force-feeding a bird “for the purpose of
enlarging the bird’s liver beyond normal size,” Cal. Health
& Safety Code § 25981, as well as the in-state sale of
products made elsewhere from birds force-fed in such a
manner, id. § 25982. The legislation does not ban foie gras
itself, but rather the practice of producing foie gras by force-
feeding. California provided a grace period of over seven
and a half years for producers to transition to alternative
methods of producing foie gras. Id. § 25984.
On July 2, 2012, the day after the state law took effect,
Plaintiffs sued the state of California, challenging only
Health and Safety Code section 25982, the provision that
bans the sale of products made from force-fed birds.
Plaintiffs initially argued that the sales ban violates the Due
ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA 5
Process and Commerce Clauses of the U.S. Constitution.
After these claims were dismissed, Plaintiffs amended their
complaint to allege that the federal Poultry Products
Inspection Act (the “PPIA”), which has been on the books
for over fifty years, preempts the state provision. The district
court concluded that section 25982 is expressly preempted
by the PPIA and granted Plaintiffs summary judgment. We
reverse and remand.
I. BACKGROUND
Plaintiffs Hudson Valley Foie Gras and the Association
des Éleveurs de Canards et d’Oies du Québec raise birds for
slaughter and produce foie gras at their facilities in New
York and Quebec, respectively; Plaintiff Hot’s Restaurant
Group is a restaurant in California that sells foie gras.
The foie gras products that Plaintiffs make and sell are
produced by force-feeding birds to enlarge their livers. From
the day they hatch, the birds undergo a regimented feeding
process that lasts for about eleven to thirteen weeks. Ass’n
des Éleveurs de Canards et d’Oies du Québec v. Harris
(Canards I), 729 F.3d 937, 942 (9th Cir. 2013). For the first
few months, the birds are fed various pellets that are made
available to them twenty-four hours a day. Id. Then, for a
two-week period, the feeding pellets are available only
during certain times of the day. Id. In the final stage of the
feeding process, which lasts up to thirteen days, the birds are
force-fed in a process called gavage, during which feeders
use “a tube to deliver the feed to the crop sac at the base of
the duck’s esophagus.” Id.A. California’s Force-Feeding Ban
In 2004, the California state legislature enacted a
statutory framework to end the practice of force-feeding
6 ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA
birds to fatten their livers. Cal. Health & Safety Code
§§ 25980–25984. Section 25981 makes it illegal to force-
feed a bird “for the purpose of enlarging the bird’s liver
beyond normal size.” Section 25982, the only provision
challenged in this case, prohibits selling a product “in
California if it is the result of force feeding a bird for the
purpose of enlarging the bird’s liver beyond normal size.” A
“bird” is defined to include a duck or a goose, id. § 25980(a),
and “force-feeding” is defined as a process by which a bird
consumes more food than it would typically consume
voluntarily, conducted through methods such as “delivering
feed through a tube or other device inserted into the bird’s
esophagus,” id. § 25980(b).
California’s law was designed to rectify what the state
considered an inhumane feeding practice. See 2004 Cal.
Legis. Serv. Ch. 904 (S.B. 1520) (Legislative Counsel’s
Digest) (seeking to establish provisions for force-feeding
birds similar to those already in place for “keeping horses or
other equine animals”). According to the legislative analysis
of the law, 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. See, e.g., Cal. Assemb.
Comm. on Bus. & Professions, Analysis of S.B. 1520, 2003–
2004 Reg. Sess., at 4–5 (June 20, 2004); Cal. Sen. Comm.
on Bus. & Professions, Analysis of S.B. 1520, 2003–2004
Reg. Sess., at 5–6 (May 6, 2004). 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. Cal. Assemb. Comm. on
Bus. & Professions, Analysis of S.B. 1520, 2003–2004 Reg.
Sess., at 5 (June 20, 2004). This process is apparently “so
hard on the birds that they would die from the pathological
damage it inflicts if they weren’t slaughtered first.” Cal.
ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA 7
Assemb. Comm. on Bus. & Professions, Analysis of S.B.
1520, 2003–2004 Reg. Sess., at 2 (Aug. 17, 2004); Cal. Sen.
Comm. on Bus. & Professions, Analysis of S.B. 1520, 2003–
2004 Reg. Sess., at 3 (Aug. 25, 2004).
In enacting the force-feeding ban, California also
considered a study conducted by the European Union’s
Scientific Committee on Animal Health and an Israeli
Supreme Court decision. The European Union study
concluded that force-feeding is detrimental to the welfare of
birds, and the Israeli Supreme Court similarly concluded that
force-feeding causes birds pain and suffering. Cal. Assemb.
Comm. on Bus. & Professions, Analysis of S.B. 1520, 2003–
2004 Reg. Sess., at 6–7 (June 20, 2004); Cal. Sen. Comm.
on Bus. & Professions, Analysis of S.B. 1520, 2003–2004
Reg. Sess., at 7–8 (May 6, 2004). In light of these and other
factors, California decided to enact the ban, joining a
growing list of countries around the world. 1
California’s legislature intended to ban not foie gras
itself, but rather the practice of producing foie gras by force-
feeding. The law’s author, Senator John Burton, made clear
when he introduced the bill that it “has nothing to do . . . with
banning foie gras” and that it prohibits only the “inhumane
force feeding [of] ducks and geese.” Then-Governor Arnold
1
The following countries have instituted some form of a ban on
force-feeding or foie gras products: Italy, the Netherlands, the Czech
Republic, India, Luxembourg, Denmark, Finland, Norway, Poland,
Israel, Sweden, Switzerland, Germany, and the United Kingdom. See,
e.g., Cal. Assemb. Comm. on Bus. & Professions, Analysis of S.B. 1520,
2003-2004 Reg. Sess., at 6 (June 20, 2004); Atish Patel, India Bans
Import of Controversial Foie Gras, Wall St. J.: India Real Time (July 7,
2014, 7:59 PM), https://blogs.wsj.com/indiarealtime/2014/07/07/india-
bans-import-of-controversial-foie-gras/; Michaela DeSoucey, Contested
Tastes: Foie Gras and the Politics of Food 61 (2016).
8 ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA
Schwarzenegger echoed this sentiment in his signing
statement: “This bill’s intent is to ban the current foie gras
production practice of forcing a tube down a bird’s throat to
greatly increase the consumption of grain by the bird. It does
not ban the food product, foie gras.” Signing Message of
Governor Arnold Schwarzenegger, Sen. Bill 1520, 2003–
2004 Reg. Sess. (Sept. 29, 2004). The legislature provided
more than seven and a half years between the passage of the
law and its effective date to allow producers to transition to
producing foie gras without force-feeding. Id.; see Cal.
Health & Safety Code § 25984(a) (This law “shall become
operative on July 1, 2012.”).
B. The PPIA
Originally enacted in 1957, the PPIA was intended to
ensure that the nation’s poultry products “are wholesome,
not adulterated, and properly marked, labeled, and
packaged.” 21 U.S.C. § 451; see Food & Water Watch, Inc.
v. Vilsack, 808 F.3d 905, 909 (D.C. Cir. 2015) (discussing
Congress’s intent to protect consumer health and welfare by
ensuring that poultry products are “wholesome, not
adulterated, and properly marked, labeled, and packaged.”
(quoting 21 U.S.C. § 451)). The PPIA accomplishes this
goal by, inter alia, authorizing the inspection of
slaughterhouses and poultry-processing plants, 21 U.S.C.
§ 455, setting proper sanitation requirements, id. § 456,
authorizing the Secretary of the U.S. Department of
Agriculture (“USDA”) to establish labeling and container
standards, id. § 457, prohibiting the sale of adulterated,
misbranded, or uninspected poultry products, id. § 458,
establishing record-keeping requirements, id. § 460, and
instituting storage and handling regulations, id. § 463. See
also Levine v. Vilsack, 587 F.3d 986, 989 (9th Cir. 2009).
ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA 9
In 1968, Congress passed the Wholesome Poultry
Products Act, which amended the PPIA “to provide for
cooperation with appropriate State agencies with respect to
State poultry products inspection programs, and for other
purposes.” Pub. L. No. 90-492, 82 Stat. 791 (1968); see also
H.R. Rep. No. 90-1333, at 2 (1968), reprinted in 1968
U.S.C.C.A.N. 3426, 3426–27. The 1968 amendment also
added an express preemption clause to the PPIA, which
states that “[m]arking, labeling, packaging, or ingredient
requirements . . . in addition to, or different than, those made
under [the PPIA] may not be imposed by any State.”
21 U.S.C. § 467e (emphasis added). At issue here is whether
California’s ban on products made by force-feeding birds
constitutes an “ingredient requirement” under the PPIA’s
preemption clause.
C. Procedural History
Initially, Plaintiffs claimed that section 25982 violates
the Due Process Clause and the dormant Commerce Clause
of the U.S. Constitution. The district court denied Plaintiffs’
request to enjoin California from enforcing section 25982,
Ass’n des Éleveurs de Canards et d’Oies du Québec v.
Harris, No. 12-CV-05735, 2012 WL 12842942 (C.D. Cal.
Sept. 28, 2012), and we affirmed the district court’s ruling,
Canards I, 729 F.3d at 942. The issue of preemption was
not before us in Canards I.
On remand, Plaintiffs amended their complaint to allege
that section 25982 is preempted by the PPIA. California
moved to dismiss the complaint, and Plaintiffs moved for
summary judgment on their preemption claim, arguing that
the PPIA both expressly and impliedly preempts section
25982. The district court denied the State’s motion to
dismiss and granted Plaintiffs’ motion for summary
judgment. It found that section 25982 imposes an
10 ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA
“ingredient requirement” and is expressly preempted by the
PPIA. Ass’n des Éleveurs de Canards et d’Oies du Québec
v. Harris (Canards II), 79 F. Supp. 3d 1136, 1144–48 (C.D.
Cal. 2015). The district court permanently enjoined
California from enforcing section 25982. Id. at 1148.
II. STANDARD OF REVIEW
We review de novo a district court’s grant of summary
judgment. Lee v. ING Groep, N.V., 829 F.3d 1158, 1160 (9th
Cir. 2016). Viewing the evidence in the light most favorable
to the nonmoving party, we must determine whether there
are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law.
Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 859 (9th Cir.
2011). We also review de novo questions of preemption and
statutory interpretation. See, e.g., Aguayo v. U.S. Bank,
653 F.3d 912, 917 (9th Cir. 2011).
III. DISCUSSION
Plaintiffs invoke three separate preemption doctrines in
support of their view that the state ban on the sale of foie
gras produced by force-feeding methods cannot be enforced.
First, they argue that the federal PPIA expressly preempts
section 25982 because it imposes an “ingredient
requirement” on the production of foie gras. Second, relying
on the doctrine of implied preemption, Plaintiffs contend
that Congress intended to comprehensively regulate the field
of poultry products and thus left no room for state laws such
as section 25982. Finally, Plaintiffs argue that implied
preemption also applies because section 25982 stands as an
obstacle to the purpose of PPIA. We address each of
Plaintiffs’ arguments in turn.
ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA 11
A. Express Preemption
Plaintiffs’ main argument, and the ground upon which
the district court granted summary judgment, is that
California’s sales ban is expressly preempted because the
PPIA prohibits states from imposing “ingredient
requirements” that are “in addition to, or different than,” the
federal law and its regulations. 21 U.S.C. § 467e.
In determining whether section 25982 is preempted by
the PPIA, Congress’s intent “is the ultimate touchstone.”
Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quoting
Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). Where
the federal statute contains an express preemption clause, we
must determine the substance and scope of the clause. Altria
Grp., Inc. v. Good, 555 U.S. 70, 76 (2008). In so doing, we
assume “that the historic police powers of the States were
not to be superseded by the Federal Act unless that was the
clear and manifest purpose of Congress.” Lohr, 518 U.S. at
485 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218,
230 (1947)). And finally, “when the text of a pre-emption
clause is susceptible of more than one plausible reading,
courts ordinarily ‘accept the reading that disfavors pre-
emption.’” Altria Grp., Inc., 555 U.S. at 77 (quoting Bates
v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005)).
We begin by noting two points of agreement between the
parties. First, Plaintiffs do not dispute that California’s
historic police powers extend to issues of animal cruelty.
See Canards I, 729 F.3d at 952 (citing United States v.
Stevens, 559 U.S. 460, 469 (2010)); Hughes v. Oklahoma,
441 U.S. 322, 337 (1979) (highlighting that protecting
animals, like safeguarding the health and safety of citizens,
is a legitimate state interest). Because animal cruelty is a
field traditionally regulated by the states, compelling
evidence of an intention to preempt is required. See Lohr,
12 ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA
518 U.S. at 485. Second, the parties also agree that Congress
intended to preempt state laws regulating the ingredients of
poultry products. The only dispute is whether California’s
sales ban imposes an “ingredient requirement” that is “in
addition to, or different than, those made under [the PPIA].”
21 U.S.C. § 467e.
Plaintiffs argue that section 25982 imposes an
“ingredient requirement” because it requires that foie gras be
made only from the livers of birds who were not force-fed.
Plaintiffs do not claim that foie gras produced from non-
force-fed birds is in any way inferior to foie gras made from
the livers of force-fed birds, only that federal law is silent on
the former. The State counters that section 25982 does not
address ingredients at all, but rather regulates California’s
market by proscribing the sale of products produced by
force-feeding birds to enlarge their livers. And to the extent
that section 25982 can be construed as a ban on foie gras
itself, the State argues that the PPIA does not prevent a state
from banning poultry products. Based on the ordinary
meaning of “ingredient” and the plain language and purpose
of the PPIA, we hold that section 25982 is not expressly
preempted by the PPIA.
1. “Ingredient Requirements” Refers to the Physical
Composition of Poultry Products
We must first determine the scope and substance of the
PPIA’s “ingredient requirements.” Altria Grp., Inc.,
555 U.S. at 76. Because the PPIA does not define the term
“ingredient,” we look to the ordinary meaning of the term.
See, e.g., Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 876
(2014) (“It is a ‘fundamental canon of statutory construction’
that, ‘unless otherwise defined, words will be interpreted as
taking their ordinary, contemporary, common meaning.’”
(quoting Perrin v. United States, 444 U.S. 37, 42 (1979))).
ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA 13
“Ingredient” is defined as “one of the foods or liquids that
you use in making a particular meal.” Macmillan English
Dictionary 776 (2nd ed. 2007); see also New Oxford
American Dictionary 893 (3rd ed. 2010) (“any of the foods
or substances that are combined to make a particular dish”);
Webster’s New World Dictionary 248 (mod. desk ed. 1979)
(“any of the things that make up a mixture; component”).
Accordingly, the term “ingredient” as used in the PPIA is
most naturally read as a physical component of a poultry
product.
This reading of “ingredient” also draws support from the
statutory scheme as a whole. See Ransom v. FIA Card
Servs., N.A., 562 U.S. 61, 70 (2011); Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts
70, 167 (2012) (“Context is the primary determinant of
meaning.”). For example, the PPIA allows the import of
foreign poultry products only if, inter alia, the products
“contain no dye, chemical, preservative, or ingredient which
renders them unhealthful, unwholesome, adulterated, or
unfit for human food.” 21 U.S.C. § 466. Similarly, the
PPIA’s “Definitions” section contains phrases such as:
“ingredients only in a relatively small proportion”; “to assure
that the poultry ingredients in such products are not
adulterated”; “common names of optional ingredients (other
than spices, flavoring, and coloring) present in such food”;
and “fabricated from two or more ingredients.” 21 U.S.C.
§ 453. Only a physical component can be added in
“relatively small proportion,” “adulterated,” or “fabricated”
in the manner described in the PPIA. In addition, regulations
implementing the PPIA use the term “ingredient” in a
manner consistent with its ordinary meaning. See, e.g.,
9 C.F.R. § 424.21 (approving a chart of ingredients,
including: acidifiers, antifoaming agents, artificial
sweeteners, food binders and extenders, coloring agents, and
14 ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA
proteolytic enzymes). The consistent usage of “ingredient”
in the PPIA and its implementing regulations further
confirms that the term is used to mean a physical component
of a product. See Util. Air Regulatory Grp. v. EPA, 134 S.
Ct. 2427, 2441 (2014) (We ordinarily assume “that identical
words used in different parts of the same act are intended to
have the same meaning.” (quoting Envtl. Def. v. Duke
Energy Corp., 549 U.S. 561, 574 (2007))).
Congress made clear that the PPIA’s “ingredient
requirements” address the physical components of poultry
products, not the way the animals are raised. See Wyeth, 555
U.S. at 565 (emphasizing that “the purpose of Congress is
the ultimate touchstone in every pre-emption case” (quoting
Lohr, 518 U.S. at 485)). The PPIA regulates “ingredient
requirements” for the purpose of ensuring that poultry
products are “wholesome, not adulterated, and properly
marked, labeled, and packaged.” 21 U.S.C. § 451; see id.§ 452 (declaring Congressional policy of preventing
distribution of “poultry products which are adulterated or
misbranded”); see also Armour & Co. v. Ball, 468 F.2d 76,
80–81 (6th Cir. 1972) (explaining the purpose of “ingredient
requirements” within the Federal Meat Inspection Act’s
(“FMIA”) identical preemption clause). The PPIA therefore
authorizes the USDA, acting through its Food Safety and
Inspection Service (“FSIS”), to prescribe standards of
identity or composition for poultry products. 21 U.S.C.
§ 453(h)(7); 9 C.F.R. § 381.155(a)(1). These “ingredient
requirements” cannot be read to reach animal husbandry
practices because the federal law “does not regulate in any
manner the handling, shipment, or sale of live poultry.” H.R.
Rep. No. 85-465 at 1 (1957), reprinted in 1957
ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA 15
U.S.C.C.A.N. 1630, 1630 (emphasis added). 2 The USDA
has even represented in legal filings that “[t]he PPIA is
wholly silent on the treatment of farm animals, (including
feeding procedures) or methods of slaughter for poultry.”
Motion for Summary Judgment, at 2, Animal Legal Def.
Fund v. USDA, No. 12-cv-04028 (C.D. Cal. Apr. 22, 2016),
ECF No. 67; id at 3 (“[The FSIS] has no authority to regulate
the care or feeding of birds prior to their arrival at the
slaughter facility.” (citing Decl. of Alice M. Thaler, Senior
Director for Program Services in the Office of Public Health
Science, FSIS, USDA, at ¶¶ 6–7, Animal Legal Def. Fund v.
USDA, No. 12-cv-04028 (C.D. Cal. Nov. 28, 2012), ECF
No. 26-1)). 3 Accordingly, the PPIA’s “ingredient
requirements” are limited to the physical components of
poultry products and do not reach the subjects of animal
husbandry or feeding practices.
The ordinary meaning of “ingredient” (in line with the
statutory context and the presumption of consistent usage)
and the purpose and scope of the PPIA together make clear
that “ingredient requirements” pertain to the physical
components that comprise a poultry product, not animal
husbandry or feeding practices. Having determined the
2
Although 21 U.S.C. § 453(g)(2)(A) makes a passing reference to
“live poultry,” it does so only in the context of explaining circumstances
in which a final poultry product could be deemed adulterated.
3
We again reject Plaintiffs’ assertion that the USDA’s Policy Book
requires foie gras to come from force-fed birds. Canards I, 729 F.3d at
950 (“It says nothing about the force feeding of geese and ducks.”).
Moreover, the background memos and letters on which Plaintiffs rely are
“couched in tentative and non-committal terms.” Reid v. Johnson &
Johnson, 780 F.3d 952, 965 (9th Cir. 2015). The USDA has explicitly
stated that the PPIA does not address the treatment of farm animals
(including feeding procedures) and, based on the plain language and
purpose of the law, we agree.
16 ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA
parameters of the PPIA’s “ingredient requirements,” we now
turn to whether section 25982 can be construed as imposing
an “ingredient requirement.”
2. California Law Does Not Impose a Preempted
Ingredient Requirement
California’s ban on the in-state sale of foie gras produced
by force-feeding contrasts starkly with the PPIA’s
conception of “ingredient requirements.” Section 25982
does not require that foie gras be made with different
animals, organs, or physical components. Nor does it require
that foie gras consist of a certain percentage of bird liver. Cf.
Armour & Co., 468 F.2d at 80–81 (holding that a state law
requiring a 12% protein content in sausage meat was
preempted because, inter alia, federal regulations required
only an 11.2% protein content). It simply seeks to prohibit
a feeding method that California deems cruel and inhumane.
Section 25982 therefore addresses a subject entirely separate
from any “ingredient requirement”: how animals are treated
long before they reach the slaughterhouse gates.
Plaintiffs argue that while section 25982 may not appear
to be an “ingredient requirement,” the law functions as one
because it requires the production of foie gras using non-
force-fed, rather than force-fed, livers. 4 As an initial matter,
it is not the livers that are force-fed, it is the birds.
Regardless, Plaintiffs’ reading of the PPIA would require us
to radically expand the ordinary meaning of “ingredient.”
The difference between foie gras produced with force-fed
birds and foie gras produced with non-force-fed birds is not
4
Nearly all of the cases that Plaintiffs cite in their brief are irrelevant
to the issue of “ingredient requirements” because they deal with other
portions of the PPIA’s preemption clause.
ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA 17
one of ingredient. Rather, the difference is in the treatment
of the birds while alive. “Force-fed” is not a physical
component that we find in our poultry; it is a feeding
technique that farmers use. The same logic applies to the
difference between regular chicken and cage-free chicken.
“Cage-free” is no more an “ingredient” than “force-fed.”
Although Plaintiffs invite us to expand the definition of
“ingredients” to include animal husbandry practices, that is
within Congress’s bailiwick, not ours. See, e.g., Henson v.
Santander Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017)
(“And while it is of course our job to apply faithfully the law
Congress has written, it is never our job to rewrite a
constitutionally valid statutory text under the banner of
speculation about what Congress might have done had it
faced a question that, on everyone’s account, it never
faced.”). The PPIA, which is silent on the topic of animal
husbandry and feeding practices, may not be read to supplant
state law on an entirely different topic. See Cipollone v.
Liggett Grp., Inc., 505 U.S. 504, 517, 523 (1992)
(“Congress’ enactment of a provision defining the pre-
emptive reach of a statute implies that matters beyond that
reach are not pre-empted.”).
Alternatively, Plaintiffs argue that section 25982 is
functionally a ban on all foie gras. According to Plaintiffs,
section 25982 bans the “ingredient” of foie gras because it
bans the process by which it is made, i.e. force-feeding. This
argument fails for two independent reasons. First, nothing
in the record before us shows that force-feeding is required
to produce foie gras. The district court assumed, without
deciding, that alternative methods of producing foie gras are
available. 5 Canards II, 79 F. Supp. 3d at 1145 n.8. And as
5
Plaintiffs do not appear to dispute that alternative methods of
producing foie gras are available. In fact, it appears that high-quality
18 ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA
noted above, California never intended to ban foie gras
entirely—only foie gras produced by force-feeding. See
Signing Message of Governor Arnold Schwarzenegger, Sen.
Bill 1520, 2003–2004 Reg. Sess. (Sept. 29, 2004); Canards
I, 729 F.3d at 945 n.4 (“Section 25982, however, does not
prohibit foie gras. It bans the sale of foie gras produced
through force feeding, but would not ban foie gras produced
through alternative methods.”); Cal. Health & Safety Code
§ 25984 (providing an effective date over seven and a half
years after passage so that producers could transition to
alternative methods of producing foie gras). Section 25982
therefore precludes only Plaintiffs’ preferred method of
producing foie gras.
Moreover, even if section 25982 results in the total ban
of foie gras regardless of its production method, it would still
not run afoul of the PPIA’s preemption clause. The PPIA
targets the slaughtering, processing, and distribution of
poultry products, 21 U.S.C. §§ 451–452, but it does not
mandate that particular types of poultry be produced for
people to eat. Its preemption clause regarding “ingredient
requirements” governs only the physical composition of
poultry products. Nothing in the federal law or its
implementing regulations limits a state’s ability to regulate
the types of poultry that may be sold for human
consumption. If foie gras is made, producers must, of
foie gras can be made without force-feeding birds. See, e.g., Dan Barber,
A foie gras parable, TED, July 2008, available at
http://www.ted.com/talks/dan_barber_s_surprising_foie_gras_parable
/transcript?language=en#t-98000; Lauren Frayer, This Spanish Farm
Makes Foie Gras Without Force-Feeding, NPR: The Salt (Aug. 1, 2016,
4:27 PM), http://www.npr.org/sections/thesalt/2016/08/01/487088946/t
his-spanish-farm-makes-foie-gras-without-force-feeding (noting that the
farmer’s natural foie gras “won the Coup de Coeur, a coveted French
gastronomy award (it’s like the Olympics for foodies)”).
ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA 19
course, comply with the PPIA. But if a state bans a poultry
product like foie gras, there is nothing for the PPIA to
regulate. The fact that Congress established “ingredient
requirements” for poultry products that are produced does
not preclude a state from banning products—here, for
example, on the basis of animal cruelty—well before the
birds are slaughtered.
Our conclusion here is consistent with rulings in both the
Fifth and Seventh Circuits. In Empacadora de Carnes de
Fresnillo, S.A. de C.V. v. Curry, the Fifth Circuit examined
whether the FMIA’s identical preemption clause was
triggered by a Texas law that banned horsemeat. 476 F.3d
326, 333–35 (5th Cir. 2007). The court explained that the
FMIA’s preemption clause governs matters such as “meat
inspection and labeling requirements. It in no way limits
states in their ability to regulate what types of meat may be
sold for human consumption in the first place.” Id. at 333.
Because the FMIA does not limit a state’s ability to define
which meats are available for human consumption, the court
found that the federal law could not preempt Texas’s
horsemeat ban. Id.Several months later, the Seventh Circuit reached the
same conclusion. In Cavel International, Inc. v. Madigan,
the plaintiff argued that the FMIA’s preemption clause swept
aside state laws that banned the slaughter of horses for
human consumption. 500 F.3d 551, 553 (7th Cir. 2007).
The Seventh Circuit determined that this “argument
confuses a premise with a conclusion.” Id. The court
explained:
When the [FMIA] was passed (and indeed to
this day), it was lawful in some states to
produce horse meat for human consumption,
and since the federal government has a
20 ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA
legitimate interest in regulating the
production of human food whether intended
for domestic consumption or for export . . . it
was natural to make the Act applicable to
horse meat. That was not a decision that
states must allow horses to be slaughtered for
human consumption. The government taxes
income from gambling that violates state law;
that doesn’t mean the state must permit the
gambling to continue. Given that horse meat
is produced for human consumption, its
production must comply with the Meat
Inspection Act. But if it is not produced,
there is nothing, so far as horse meat is
concerned, for the Act to work upon.
Id. at 553–54. Like the Fifth Circuit, the Seventh Circuit
found that the FMIA is concerned with inspecting facilities
at which meat is produced for human consumption, not
“preserving the production of particular types of meat for
people to eat.” Id. at 554 (quoting Empacadora de Carnes
de Fresnillo, 476 F.3d at 333).
Like the state bans on horsemeat in Empacadora de
Carnes de Fresnillo and Cavel, section 25982 is not
preempted by the PPIA even if it functions as a total ban on
foie gras. 6 Presumably, Congress could have authorized
6
Section 25982 was inspired, in part, by California’s own ban on
horsemeat. See Cal. Assemb. Comm. on Bus. & Professions, Analysis
of S.B. 1520, 2003-2004 Reg. Sess., at 7 (June 20, 2004) (noting that
there is only a small step between a ban on horse, cat, and dog meat and
a ban on force-feeding birds). As societal values change, so too do our
notions of acceptable food products. Like foie gras, horsemeat was once
a delicacy. Cavel, 500 F.3d at 552. Today, many states, including
California, ban horsemeat because they consider the idea of eating horse
ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA 21
force-fed bird products, but “Congress did not write the
statute that way.” United States v. Naftalin, 441 U.S. 768,
773 (1979); see also Dodd v. United States, 545 U.S. 353,
359 (2005) (“[W]e are not free to rewrite the statute that
Congress has enacted.”).
Instead of addressing Empacadora de Carnes de
Fresnillo and Cavel, Plaintiffs rely on the Supreme Court’s
decision in National Meat Ass’n v. Harris, 565 U.S. 452(2012). This case, however, bears little resemblance to
National Meat. The California statute at issue in National
Meat governed the slaughter of nonambulatory pigs.
565 U.S. at 455. In order to ensure that slaughterhouses
handled nonambulatory pigs in a particular way, the state
statute included a sales ban on selling meat or products from
such pigs. Id. at 463–64.
The Supreme Court in National Meat found that the state
statute was preempted because it regulated matters that fall
within the heart of the FMIA’s regulatory scope: the
activities of slaughterhouses. According to the Court, the
state law interfered in the operations of slaughterhouses,
imposing requirements regarding the treatment of
nonambulatory pigs that did not exist under the federal law
and its regulations. Id. at 460–64 (emphasizing that the
nonambulatory pig statute “functions as a command to
repugnant. See id.; Cal. Penal Code §§ 598c-598d. California, like a
growing number of countries around the world, has concluded that force-
fed foie gras is similarly repugnant. The PPIA and its preemption clause
do not stand in the way of society’s evolving standards regarding animal
treatment. Cf. Stevens, 559 U.S. at 469 (“[T]he prohibition of animal
cruelty itself has a long history in American law, starting with the early
settlement of the Colonies.”); see generally Emily Stewart Leavitt,
Animals and Their Legal Rights: A Survey of American Laws from 1641
to 1990 1-47 (4th ed. 1990).
22 ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA
slaughterhouses [on how] to structure their operations”).
The Court explained that while “a slaughterhouse may take
one course of action in handling a nonambulatory pig” under
the FMIA and its implementing regulations, “under state law
the slaughterhouse must take another [course of action].” Id.
at 460. In distinguishing the nonambulatory pig law from
the horsemeat bans in Empacadora de Carnes de Fresnillo
and Cavel, the Court underscored that the horsemeat bans
“work[] at a remove from the sites and activities that the
FMIA most directly governs.” Id. at 467. Unlike the
horsemeat cases, the Court found that the nonambulatory pig
statute “reaches into the slaughterhouse’s facilities and
affects its daily activities.” Id. The Court thus concluded
that the FMIA preempted California’s nonambulatory pig
statute.
National Meat does not apply here because it addressed
a different preemption argument in the context of a very
different state law. 7 As an initial matter, National Meat and
the present case deal with different portions of the FMIA’s
and PPIA’s parallel preemption clauses; while National
Meat focused exclusively on the “premises, facilities and
operations” portion of the FMIA’s preemption clause,
Plaintiffs here invoke only the “ingredient requirements”
portion of the PPIA’s preemption clause. Moreover, section
25982, like the horsemeat bans in Empacadora de Carnes de
Fresnillo and Cavel, “works at a remove from the sites and
activities that the [PPIA] most directly governs.” Nat’l Meat
Ass’n, 565 U.S. at 467. Section 25982 also does not reach
7
We also note that, unlike the FMIA at issue in National Meat, the
PPIA does not explicitly incorporate the Humane Methods of Slaughter
Act. We have not had the occasion to decide whether poultry should be
considered “other livestock” under the Humane Methods of Slaughter
Act, see 7 U.S.C. § 1902(a), and we need not decide that issue here.
ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA 23
into a poultry “slaughterhouse’s facilities and affect[] its
daily activities.” Id. We therefore hold that the PPIA does
not expressly preempt California Health and Safety Code
section 25982.
B. Implied Preemption
Alternatively, Plaintiffs argue that the PPIA impliedly
preempts section 25982 under the doctrines of field and
obstacle preemption. Neither doctrine, however, applies
here.
Under the doctrine of field preemption, “States are
precluded from regulating conduct in a field that Congress,
acting within its proper authority, has determined must be
regulated by its exclusive governance.” Arizona v. United
States, 567 U.S. 387, 399 (2012). Courts may infer field
preemption from a framework of regulation so pervasive
“that Congress left no room for the States to supplement it”
or where the federal interest is “so dominant that the federal
system will be assumed to preclude enforcement of state
laws on the same subject.” Id. (quoting Rice, 331 U.S. at
230); see English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990).
Plaintiffs concede that the PPIA does not regulate the field
of animal care and feeding, but view the PPIA as broadly
occupying the field of all edible products that result from
raising poultry for food.
Plaintiffs’ field preemption argument ignores the states’
role in poultry regulation. Cf. Arizona, 567 U.S. at 401(“Field preemption reflects a congressional decision to
foreclose any state regulation in the area, even if it is parallel
to federal standards.” (emphasis added)); Campbell v.
Hussey, 368 U.S. 297, 330 (1961) (finding a state law
preempted because the federal law does not allow even
“complementary” or “supplement[al]” state requirements).
24 ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA
The express preemption clause at the heart of Plaintiffs’ case
clearly provides that the PPIA “shall not preclude any State
. . . from making requirement[s] or taking other action,
consistent with [the PPIA], with respect to any other matters
regulated under [it].” 21 U.S.C. § 467e; see also Bates,
544 U.S. at 447. It also explains that state laws regarding
storage and handling are preempted only if the Secretary of
Agriculture finds those laws to “unduly interfere with the
free flow of poultry products in commerce . . . .” Id. In
addition, states may implement standards for the inspection
of poultry sold in-state, even if those standards are more
rigorous than the ones imposed by federal law. Miss. Poultry
Ass’n v. Madigan, 31 F.3d 293, 296 (5th Cir. 1994) (en banc)
(“Principles of federalism . . . led Congress to choose not to
displace state inspection programs. Instead, Congress in
these amendments created a complex ‘marbled cake’ scheme
. . . .” (citing 21 U.S.C. § 454(a)) (footnote omitted)).
Because the PPIA itself contemplates extensive state
involvement, Congress clearly did not intend to occupy the
field of poultry products. See Empacadora de Carnes de
Fresnillo, 476 F.3d at 334 (“Congress did not intend to
preempt the entire field of meat commerce under the
FMIA.”).
Plaintiffs’ theory of obstacle preemption fares no better.
Obstacle preemption, which is a form of conflict preemption,
occurs “where the challenged state law ‘stands as an obstacle
to the accomplishment and execution of the full purposes
and objectives of Congress.’” Arizona, 567 U.S. at 399–400
(quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)); see
also Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363,
373 (2000) (“What is a sufficient obstacle is a matter of
judgment, to be informed by examining the federal statute as
a whole and identifying its purpose and intended effects
. . . .”). As with express preemption, courts “assume that
ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA 25
‘the historic police powers of the States’ are not superseded
‘unless that was the clear and manifest purpose of
Congress.’” Arizona, 567 U.S. at 400 (quoting Rice,
331 U.S. at 230).
Plaintiffs fail to explain how section 25982 stands as an
obstacle to the PPIA’s objectives of ensuring that poultry
products are “wholesome, not adulterated, and properly
marked, labeled, and packaged.” 21 U.S.C. § 451; see also
21 U.S.C. § 452. The PPIA most directly regulates “official
establishments,” where the “inspection of the slaughter of
poultry, or the processing of poultry products,” occurs.
21 U.S.C. § 453(p); see 9 C.F.R. § 381.1; see also Nat’l
Meat Ass’n, 565 U.S. at 467 (noting that the FMIA most
directly governs establishments where slaughtering and
processing occurs). Section 25982, in contrast, prohibits
what California finds to be a cruel feeding practice that
occurs far away from the official establishments that the
PPIA regulates. See Empacadora de Carnes de Fresnillo,
476 F.3d at 334–35. Moreover, nothing in section 25982
interferes with the USDA’s “authority to inspect poultry
producers for compliance with health and sanitary
requirements, require[] inspection of poultry after slaughter,
establish[] labeling requirements for poultry products, [or]
allow[] for withdrawal of inspections for noncompliance and
the imposition of civil and criminal penalties for the sale of
adulterated products.” Levine, 587 F.3d at 989 (citing
21 U.S.C. §§ 455–57, 461). As the Supreme Court has
cautioned, we should not “seek[] out conflicts between state
and federal regulation where none clearly exists.” English v.
Gen. Elec. Co., 496 U.S. at 90 (quoting Huron Portland
Cement Co. v. Detroit, 362 U.S. 440, 446 (1960)).
Accordingly, we conclude that section 25982 does not stand
as an obstacle to accomplishing the PPIA’s purposes.
26 ASS’N DES ÉLEVEURS DE CANARDS V. BECERRA
IV. Conclusion
Because Health and Safety Code section 25982 is not
preempted by the PPIA, California is free to enforce it. We
REVERSE the district court’s grant of summary judgment,
VACATE the district court’s permanent injunction, and
REMAND the case for further proceedings consistent with
this opinion.