Briefing has been completed before the U.S. Supreme Court (SCOTUS) on a petition seeking review of the Ninth Circuit Court of Appeals ruling upholding California’s prohibition on the sale of food produced by force feeding birds to enlarge the liver beyond normal size. Association des Éleveur de Canards des d’Oies du Québec v. Harris, No. 13-1313 (U.S., distributed for Sept. 29, 2014, conference on July 16). Additional details about the Ninth Circuit’s ruling appear in Issue 497 of this Update.

Joining the Canadian and New York foie gras producers that filed the certiorari petition are the attorneys general (AGs) of 13 states. Their amici curiae brief claims that the petition presents an issue of “exceptional importance to the preservation of state sovereignty,” namely, that the lower court’s decision “allows the states to engage in economic isolationism, set themselves against one another, and balkanize the nation, thus giving rise to trade wars and undoing the protections of the Court’s dormant Commerce Clause jurisprudence and the structural limitations on extraterritorial regulation inherent in the Constitution.” They contend that the disputed law goes beyond regulating the feeding of ducks in California and “regulates activity occurring wholly out of state, i.e., the methods farmers use in other states to produce their poultry products.”

The petitioners also invoke the Commerce Clause, claiming that their ducks, raised in Canada and New York, are “in full compliance with both federal and local law. But, under the ruling below, they are now prohibited from selling their foie gras products in California if they feed their animals ‘more food’ than whatever California arbitrarily dictates as the limit for its own ducks.” California Attorney General Kamala Harris argues that the proceedings—denial of a motion for preliminary injunction—are at an interlocutory stage and that the Court has no sound basis to review the matter. Harris also contends that the statute neutrally regulates in-state transactions and thus does not violate the dormant Commerce Claus “simply because [it] may have some effect on the practices of out-of-state firms that wish to serve the in-state market.”

News sources have noted that amici do not include New York’s AG and suggest that some of the involved states—Alabama, Georgia, Iowa, Kansas, Missouri, Montana, Oklahoma, and South Carolina—are among the nation’s top pork, beef and poultry producers, who may be concerned about other local efforts to dictate farming methods, such as the space provided for individual animals and other feeding practices, matters of concern to animal rights advocates. See McClatchy DC, July 14, 2014; The Los Angeles Times, July 16, 2014.

Meanwhile, a New York appellate court has upheld a lower court ruling that the Animal Legal Defense Fund, Inc. and an individual who occasionally consumes foie gras lacked standing to bring an action against the state’s commissioner of Agriculture and Markets, Department of Agriculture and Markets and corporations that produce foie gras, seeking “a declaration that force-fed fois gras is an adulterated food product and an order prohibiting the state respondents from allowing foie gras into the human food supply.” In re Animal Legal Defense Fund, Inc. v. Aubertine, 2014 NY Slip Op 05395 (N.Y. App. Div., decided July 17, 2014).

The court ruled that the individual who based his standing on an alleged increased risk of developing secondary amyloidosis “has, at best, occasional exposure to a product that has not yet been connected by any actual case to the purported risk of harm alleged by petitioners.” According to the court, such allegations of injury are “speculative and rest upon conjecture.” The court also rejected his assertion of standing as a taxpayer. As to the organization, the court disagreed that using resources to investigate and litigate the alleged conduct conferred standing, noting that “[f]inding standing under the situation presented here would essentially eliminate the standing requirement any time an advocacy organization used its resources to challenge government action or inaction.”