The Ninth Circuit Court of Appeals has affirmed a lower court ruling denying the request for a preliminary injunction to halt the application of a California statute that forbids the sale of products resulting from force feeding a bird to enlarge its liver and prohibits force feeding birds to enlarge their livers beyond normal size. Association des Éleveurs de Canards et d’Oies du Québec v. Harris, No. 12-56822 (9th Cir., decided August 30, 2013). While the court dismissed the governor and state as defendants on the basis of immunity, it agreed with the district court that the state attorney general was not immune from suit under the Eleventh Amendment. Additional information about the lawsuit appears in issues 446 and 454 of this Update.

Because the court found that the plaintiffs, out-of-state foie gras producers and a California restaurant that sold the product before the law took effect, were not likely to succeed on the merits, it did not address the remaining preliminary injunction elements. Among other matters, the court determined that the statute did not prohibit the sale of anything other than duck livers produced by force feeding in California, rejecting the plaintiffs’ argument that it would also prohibit them from selling down or breast meat from its force-fed ducks. The court also rejected the plaintiffs’ contention that the law is unconstitutionally vague, because the terms “demonstrate that the statute covers Plaintiffs’ conduct in this case.” The court further found that the law did not violate the plaintiffs’ rights under the Commerce Clause.

Two of the court’s determinations were based on the preliminary nature of the proceedings: (i) “Plaintiffs would have us assume, without evidentiary support, that § 25982 amounts to a flat ban on foie gras. Plaintiffs’ declarations do not demonstrate that foie gras may be produced only by force feeding. . . . At this stage in the proceedings, Plaintiffs have not shown that the effect of § 25982 is a complete import and sales ban on foie gras”; and (ii) “At this stage in the proceedings, Plaintiffs have not demonstrated that a nationally uniform foie gras production method is required to produce foie gras. If no uniform production method is required, Plaintiffs may force feed birds to produce foie gras for non-California markets. California’s standards are therefore not imposed as the sole production method Plaintiffs must follow.”