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Foie gras is back in CA
- Thread starter Jeff Grossman
- Start date
Jonathan Loesberg
Jonathan Loesberg
I don't quite get why a state can't ban a food because of humanitarian reasons regarding how the food is produced just because the food and drug administration doesn't ban it for health reasons. But maybe I'm missing the logic of the decision.
John Roberts
John Roberts
Congress passed a statute regulating the production of poultry and expressly preempted any additional state regulations regarding "ingredients" in poultry products. The court interpreted the ban on the sale of foie gras products as an ingredient requirement--i.e., the product cannot contain force-fed liver. Not sure how persuasive that is but I think that was the logic.
David Erickson
David Erickson
Whatever. I'd like a nice lobe, passed briefly over the grill, please, and a glass of Monbazillac.
originally posted by David Erickson:
Whatever. I'd like a nice lobe, passed briefly over the grill, please, and a glass of Monbazillac.
David, I love your suggestion of Monbazillac. I think its flavor profile is a much better match than the stereotypical Sauternes. Tokaji Aszu would be another interesting choice.
Mark Lipton
Jay Miller
Jay Miller
A belated victory for common sense.
Sharon Bowman
Sharon Bowman
MLipton's world is the kingdom of heightened common sense. May it abide.
originally posted by MLipton:
originally posted by David Erickson:
Whatever. I'd like a nice lobe, passed briefly over the grill, please, and a glass of Monbazillac.
David, I love your suggestion of Monbazillac. I think its flavor profile is a much better match than the stereotypical Sauternes. Tokaji Aszu would be another interesting choice.
Mark Lipton
I like to get away from the oak even found in Monbazillac and while I love a late harvest Chenin or Riesling with foie, I still haven't found a better match than a late harvest Pinot Gris.
Jonathan Loesberg
Jonathan Loesberg
Well, I'll be the bad guy here. I love foie gras and will always vote against banning it. But I think a state should have the right to ban modes of food production it considers humane. The modes should in fact be inhumane, but that isn't a question of principle but a case by case issue. I do not find the court decision, as explained here, to be persuasive. First, the ban was not on an ingredient. You can still sell goose or duck liver, but on the ingredient as it is produced in a certain way, by force-feeding. Even if one considers the method of feeding to be an ingredient (and god knows, judges make lots of such determinations that I find wildly counter-intuitive), I really think it's an adventurous application of the law, which pretty clearly means to take safety regulations out of state jurisdictions, but not other kinds of production regulations.
Dear Other Prof,
At issue here, I think, is not the state's right to ban a practice, but rather it's right to ban its sale. Since Hudson Valley producers were unable to sell their wares in CA, that sounds like a clear violation of the Interstate Commerce clause. It required a Constituional amendment (the 21st) to avoid that issue with alcohol sales.
Mark Lipton
At issue here, I think, is not the state's right to ban a practice, but rather it's right to ban its sale. Since Hudson Valley producers were unable to sell their wares in CA, that sounds like a clear violation of the Interstate Commerce clause. It required a Constituional amendment (the 21st) to avoid that issue with alcohol sales.
Mark Lipton
Jonathan Loesberg
Jonathan Loesberg
originally posted by MLipton:
Dear Other Prof,
At issue here, I think, is not the state's right to ban a practice, but rather it's right to ban its sale. Since Hudson Valley producers were unable to sell their wares in CA, that sounds like a clear violation of the Interstate Commerce clause. It required a Constituional amendment (the 21st) to avoid that issue with alcohol sales.
Mark Lipton
Ah, I hadn't thought of that. It is somewhat more tricky. But in fact, localities do have the right to ban the sale of alcohol--whether or not states do. Just try to find a liquor store in Evanston, IL, which was dry when I was there 30 years ago at least.
Jay Miller
Jay Miller
originally posted by Jonathan Loesberg:
originally posted by MLipton:
Dear Other Prof,
At issue here, I think, is not the state's right to ban a practice, but rather it's right to ban its sale. Since Hudson Valley producers were unable to sell their wares in CA, that sounds like a clear violation of the Interstate Commerce clause. It required a Constituional amendment (the 21st) to avoid that issue with alcohol sales.
Mark Lipton
Ah, I hadn't thought of that. It is somewhat more tricky. But in fact, localities do have the right to ban the sale of alcohol--whether or not states do. Just try to find a liquor store in Evanston, IL, which was dry when I was there 30 years ago at least.
The ability of the states (or even individual counties) to regulate alcohol sales in the way they do is because of that constitutional amendment. That was the compromise for repealing prohibition.
Jonathan Loesberg
Jonathan Loesberg
Right, Jay, I misunderstood. If I am to take the Interstate Commerce clause as not allowing any state to ban the produce of any other state, though, I still wonder why this court decided on the basis of a Food and Drug Administration law.
And constitutional issues aside, I still think that, though CA oughtn't to have banned foie gras, they should have the right to do so. One day, some state will want to ban current practices in factory farming of chicken, and I will want to support them, even if they also want to ban the sale of chicken produced in that way in other states.
And constitutional issues aside, I still think that, though CA oughtn't to have banned foie gras, they should have the right to do so. One day, some state will want to ban current practices in factory farming of chicken, and I will want to support them, even if they also want to ban the sale of chicken produced in that way in other states.
kirk wallace
kirk wallace
Jonathan, not that it matters to your core point, but as you like definitions and accuracy, the statute in question is the Poultry Products Inspection Act, which is enforced by the Department of Agriculture, not the FDA.
I will note, more to the core of your question, that if you do want to get into the court's basis for its ruling, the preemption analysis is laid out on pp. 9-15 of the opinion (in the link in Jeff's original post). It is pretty clearly written in non-technical language. Had CA merely banned the sale in CA of foie gras produced solely in CA, the statute might have survived pre-ememption, but as it was, the CA law clearly imposes a burden on interstate commerce and states cannot regulate in that case if Congress has imposed its own rules.
The court notes that the PPIA does not require that duck or goose liver be produced only by non-force feeding. CA, by allowing non-force fed duck and goose liver to the sold, and by prohibiting the force-fed variety, it leaves open the possibility that producers and sellers who comply with Federal law can nonetheless be in volition of CA law. Preemption does not allow that; hence the court had to strike down the CA law.
It probably doesn't help respond to your sense of what is right and wrong, but i don't see a practical way to put the Constitutional issues aside in this situation.
I will note, more to the core of your question, that if you do want to get into the court's basis for its ruling, the preemption analysis is laid out on pp. 9-15 of the opinion (in the link in Jeff's original post). It is pretty clearly written in non-technical language. Had CA merely banned the sale in CA of foie gras produced solely in CA, the statute might have survived pre-ememption, but as it was, the CA law clearly imposes a burden on interstate commerce and states cannot regulate in that case if Congress has imposed its own rules.
The court notes that the PPIA does not require that duck or goose liver be produced only by non-force feeding. CA, by allowing non-force fed duck and goose liver to the sold, and by prohibiting the force-fed variety, it leaves open the possibility that producers and sellers who comply with Federal law can nonetheless be in volition of CA law. Preemption does not allow that; hence the court had to strike down the CA law.
It probably doesn't help respond to your sense of what is right and wrong, but i don't see a practical way to put the Constitutional issues aside in this situation.
Jonathan Loesberg
Jonathan Loesberg
OK, I now see the logic. I do think Constitutional issues aren't the core, though, as this explains it. After all, CA has long had stricter restrictions on automobile emissions than the national ones and those restrictions do apply to cars produced outside the state I assume and yet they haven't been struck down.
kirk wallace
kirk wallace
I think it is basically all the same issue at root, but, it seems, and i don't know anything about the Clear Air Act, that Congress authorizes the EPA to allow states to set their own standards if the state gets an EPA waiver. Maybe there is more in here EPA Waivers.