This post is written by Senior Editor Hannah Seiter. Opinions and views expressed herein are those of the writer alone.
Force-feeding and consequently fattening geese for slaughter and consumption may have been a culinary practice as early as the Fifth Dynasty of Egypt. We even know that Roman Senator Cato the Elder wrote down techniques on force-feeding geese in his On Farming. Similar practices continue today with the most famous product resulting from force-feeding geese being foie gras [fwä-ˈgrä], which Webster defines as “the fatted liver of an animal and especially of a goose usually served as a pâté.” The dish’s importance is even recognized in French law. Foie gras, while traditionally a French dish, has long been known to American taste buds, as famous television chefs, such as Julia Child and Emeril Lagasse, have easily assessible recipes for the preparation of foie gras.
While foie gras is well-known and steeped with history, the production of foie gras is controversial. The animal-rights organization, PETA, describes the production of foie gras as a practice where “workers ram pipes down the throats of male ducks twice each day, pumping up to 2.2 pounds of grain and fat into their stomachs, or geese three times a day, up to 4 pounds daily, in a process known as “gavage.” The force-feeding causes the birds’ livers to swell to up to 10 times their normal size” for eventual harvesting.
The State of California moved to ban the practice in 2004. Then-Governor Arnold Schwarzenegger, as he signed the bill into law, stated, “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.” As result, California Health and Safety Code Section 25981 prohibits the force feeding a bird to “enlarging the bird’s liver.” Section 25982 prohibits selling any product “in California if it is the result of force-feeding a bird for the purpose of enlarging [a bird’s liver].”
After years of litigation, the Ninth Circuit Court of Appeals upheld California’s ban, overturning a District Court decision, which found the ban unconstitutional last September. The Plaintiffs, three companies, namely, Canadian Farmers, Hudson Valley, and Hot’s Restaurant Group, argued that the Poultry Products Inspection Act (PPIA) preempts Section 25982 of the California Health and Safety Code. More specifically, the District Court determined that the issue is “whether a sales ban on product containing a constituent that was produced in a manner is an “ingredient requirement” under the PPIA.”
The PPIA, according to the District Court,
expressly preempts states from imposing: [m]arking, labeling, packaging, or ingredient requirements (or storage or handling requirements . . . [that] unduly interfere with of poultry products in commerce) in addition to, or different than, those made under this chapter [of the PPIA] with respect to articles prepared at any official establishment in accordance with the requirements under this chapter.
The District Court reasons that “Plaintiffs foie gras products may comply with all federal requirements but still violate Section 25982 because their products contain a particular constituent—force-fed bird’s liver [then] Section 25982 imposes an ingredient requirement in addition to or different than the federal laws and regulations.” Therefore, District Court granted summary judgement to the Plaintiffs because the PPIA expressly preempts Section 25982.
The Ninth Circuit, however, holds “that section 25982 is not expressly preempted by the PPIA.” Among other reasons, the Ninth Circuit stated that “Because animal cruelty is a field traditionally regulated by the states, compelling evidence of an intention to preempt is required.”
The Ninth Circuit also instructs that “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.” In other words, the Ninth Circuit believes that section 25982 cannot be preempted because it is governing a process and not a product, which would be governed by the PPIA.
Treading a fine line, the Ninth Circuit determines that the process as proscribed by section 25982 is not an “ingredient requirements (or storage or handling requirements . . . [that] unduly interfere with of poultry products in commerce) in addition to, or different than, those made under this chapter [of the PPIA].”
While foie gras and federal preemption are not the most obvious pairing, the Supreme Court of the United States will have to eventually determine whether the California ban should continue to stand—whether states have the right to govern the process of force-feeding geese.
 Wall Street Journal, A Short History of Foie Gras, The Wall Street Journal (2008), https://www.wsj.com/articles/SB121207726422829649 (last visited Mar 5, 2018).
 Foie Gras, Merriam-Webster, https://www.merriam-webster.com/dictionary/foie%20gras (last visited Mar 5, 2018).
 n ° 2006-11 of January 5th, 2006 – art. 74 JORF January 6, 2006, https://www.legifrance.gouv.fr/affichCodeArticle.do;jsessionid=943EF0198AA70E691D551179EB5E5A83.tpdjo05v_3?idArticle=LEGIARTI000006584967&cidTexte=LEGITEXT000006071367&dateTexte=20091223 (last visited Mar 5, 2018).
 See passim Julia Child & Simone Beck, Mastering the art of French cooking: volume 2 (2009); Emeril Lagasse, Foie Gras Terrine, Cooking Channel (2017), https://www.cookingchanneltv.com/recipes/emeril-lagasse/foie-gras-terrine-3644369 (last visited Mar 5, 2018).
 Foie Gras: Cruelty to Ducks and Geese, PETA, https://www.peta.org/issues/animals-used-for-food/factory-farming/ducks-geese/foie-gras/ (last visited Mar 5, 2018).
 Signing Message of Governor Arnold Schwarzenegger, Sen. Bill 1520, 2003–2004 Reg. Sess. (Sept. 29, 2004).
 CAL. HEALTH & SAFETY CODE § 25981 (2004).
 CAL. HEALTH & SAFETY CODE § 25982 (2004).
 Ass’n des Éleveurs de Canards et d’Oies du Québec v. Becerra (Ass’n des Éleveurs), 870 F.3d 1140 (9th Cir. 2017) (in which the California’s foie gras sales prohibition is not preempted by the Poultry Products Inspection Act (PPIA)), reversing 79 F. Supp. 3d 1136 (C.D. Cal. 2015).
 21 U.S.C. Sections 451-470.
 Ass’n des Éleveurs, 79 F. Supp. 3d at 1138.
 21 U.S.C. Section 476e (as quoted in 79 F. Supp. 3d at 1144).
 Ass’n des Éleveurs, 79 F. Supp. 3d at 1145.
 Id. at 1146.
 Id. at 1150.
 21 U.S.C. Section 476e (as quoted in 79 F. Supp. 3d at 1144).