Amicus Curiae Brief — Association des Éleveurs de Cananards et D'oies du Quebéc, et al., Petitioners v. Rob Bonta, Attorney General of California

No. 22–472

In The

Supreme Court of the United States

───── ⧫ ─────

ASSOCIATION DES ÉLEVEURS DE CANARDS ET D’OIES

DU QUÉBEC, ET AL.,

Petitioners,

V.

ROB BONTA, ATTORNEY GENERAL OF CALIFORNIA,

Respondent.

───── ⧫ ─────

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

───── ⧫ ─────

BRIEF OF AMICUS CURIAE REPUBLIC OF

FRANCE IN SUPPORT OF PETITIONERS

───── ⧫ ─────

HORVITZ & LEVY LLP

ERIC S. BOORSTIN

Counsel of Record

H. THOMAS WATSON

3601 WEST OLIVE AVENUE, 8TH FLOOR

BURBANK, CALIFORNIA 91505

(818) 995-0800

eboorstin@horvitzlevy.com

Counsel for Amicus Curiae

Republic of France

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF AMICUS CURIAE ............................1

SUMMARY OF ARGUMENT.....................................3

ARGUMENT ...............................................................4

The Court should grant certiorari because

California’s foie gras ban thwarts a negotiated

agreement between the Executive Branch and

a foreign nation, undermining the federal

government’s ability to speak with one voice on

foreign affairs. .............................................................4

A.

Agreements

between

the

Executive Branch and foreign

nations preempt any conflicting

state laws. ..............................................4

B.

The United States agreed with

France to adopt the French

definition of foie gras for the

United States market. ...........................6

C.

This Court should grant certiorari

because California’s law banning

foie gras from “force-fed” poultry

conflicts with the United States’

agreement to adopt the French

definition of foie gras. ............................9

ii

CONCLUSION ..........................................................11

iii

TABLE OF AUTHORITIES

Page(s)

Cases

American Insurance Ass’n v.

Garamendi,

539 U.S. 396 (2003) ................................................5

Arizona v. United States,

567 U.S. 387 (2012) ................................................5

Butz v. Economou,

438 U.S. 478 (1978) ................................................8

Crosby v. Nat’l Foreign Trade Council,

530 U.S. 363 (2000) ................................................5

Japan Line, Ltd. v. County of Los

Angeles,

441 U.S. 434 (1979) ............................................4, 5

Michelin Tire Corp. v. Wages,

423 U.S. 276 (1976) ................................................4

Nat’l Broiler Council v. Voss,

44 F.3d 740 (9th Cir. 1994)....................................8

United States v. Locke,

529 U.S. 89 (2000) ..................................................5

United States v. Pink,

315 U.S. 203 (1942) ................................................5

iv

Zivotofsky ex rel. Zivotofsky v. Kerry,

576 U.S. 1 (2015) ....................................................4

Statutes

California Health and Safety

Code § 25982 ......................................................3, 9

Code rural et de la pêche maritime

art. L654-27-1 ........................................................1

Miscellaneous

Food & Safety Inspection Serv., Policy

Memo 076 (1984) ....................................................8

Food Standards and Labeling Policy

Book (rev. web ed. 2005), USDA,

https://www.fsis.usda.gov/

sites/default/files/import/LabelingPolicy-Book.pdf ..................................................6, 8

Gastronomic Meal of the French,

UNESCO,

https://ich.unesco.org/en/RL/gastron

omic-meal-of-the-french-00437..............................2

1

INTEREST OF AMICUS CURIAE1

The Republic of France submits this amicus

brief to urge the Court to review and reverse a Ninth

Circuit preemption ruling that undermines the nationally uniform U.S. Department of Agriculture

(USDA) standards governing the ingredients of poultry products—in this case, a category of poultry products that represents an enduring part of France’s heritage and culture that the federal government has

worked with France to protect. The Ninth Circuit’s

decision also undermines the diplomatic process by

which agreements between nations are reached, such

as the USDA’s agreement to adopt French standards

governing foie gras that was the fruition of its negotiations with French representatives. This Court’s review will help to assure foreign governments that

they can reliably negotiate with the United States

government to address issues of common interest.

Foie gras—defined by French law as the liver

of a duck or a goose specially fattened by gavage—is

statutorily recognized as part of the cultural and gastronomic heritage protected in France.2 Code rural et

de la pêche maritime art. L654-27-1. Indeed, “the gastronomic meal of the French,” which often includes a

No party’s counsel authored this amicus brief in whole or in

part. No one other than the Republic of France or its counsel

contributed money to prepare or submit this brief. After timely

notice, all parties consented in writing to the filing of this brief.

1

In the original French: “Le foie gras fait partie du patrimoine

culturel et gastronomique protégé en France. On entend par foie

gras, le foie d’un canard ou d’une oie spécialement engraissé par

gavage.” Code rural et de la pêche maritime art. L654-27-1.

2

2

serving of foie gras, has been designated by UNESCO

as an “Intangible Cultural Heritage of Humanity.”3

California’s statutory ban on sale of “force-fed”

foie gras—a poultry product ingredient which the

USDA long has approved for sale throughout the

United States—is an assault on French culture and

tradition. At France’s request, the USDA agreed

more than 45 years ago to adopt the French standards

for foie gras, which recognize that foie gras must be

obtained from “specially-fed and fattened” geese and

ducks. Thus, California is not seeking to prohibit the

sale of only some types of foie gras. To the contrary,

its ban is total—all foie gras necessarily requires the

gavage of ducks and geese to fatten their livers.

If the Ninth Circuit’s preemption opinion is allowed to stand, it would allow California to undermine an agreement between the Executive Branch of

the federal government and a foreign nation. Moreover, the sale of any USDA-approved poultry (or meat)

products that are exported from France or other nations to the United States—or are produced in the

United States but are identical or substantially similar to French or other foreign produced products—will

be left vulnerable to the political whims of fifty different state governments.

───── ⧫ ─────

Gastronomic

Meal

of

the

French,

UNESCO,

https://ich.unesco.org/en/RL/gastronomic-meal-of-the-french-00437

(last visited Dec. 14, 2022).

3

3

SUMMARY OF ARGUMENT

As the USDA recognizes, foie gras must be the

product of force-fed geese or ducks. This USDA requirement resulted from diplomatic negotiations between the U.S. federal government and the Republic

of France, which led to the USDA’s adoption of French

standards for defining foie gras products. Notwithstanding the federal policy to the contrary, California

enacted California Health and Safety Code section

25982, which prohibits the sale of force-fed foie gras.

Review is warranted not only for the reasons

emphasized in the petition, but also because California’s statute undermines the ability of the federal government to speak with one voice on matters touching

on international relations. The Republic of France—

continuing a tradition of French-American diplomatic

relations and cooperation dating back to the Revolutionary War—negotiated with the United States federal government so that it would adopt the USDA foie

gras ingredient requirements that protect France’s

industry and cultural heritage in foie gras. California’s decision to thwart that agreement raises important concerns about a state’s ability to contravene

the foreign policy decisions of the federal government,

which diminishes the potential for international cooperation on many matters of global importance.

───── ⧫ ─────

4

ARGUMENT

The Court should grant certiorari because California’s foie gras ban thwarts a negotiated

agreement between the Executive Branch and a

foreign nation, undermining the federal government’s ability to speak with one voice on foreign affairs.

A.

Agreements between the Executive

Branch and foreign nations preempt any

conflicting state laws.

The Framers of the Constitution recognized

that “the Federal Government must speak with one

voice when regulating commercial relations with foreign governments.” Michelin Tire Corp. v. Wages, 423

U.S. 276, 285 (1976). More broadly, the need for the

United States to speak with “one voice” on matters affecting international relations informs the Court’s

analysis when considering a wide range of legal doctrines. See, e.g., Zivotofsky ex rel. Zivotofsky v. Kerry,

576 U.S. 1, 14 (2015) (separation of powers); Japan

Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 449

(1979) (negative Foreign Commerce Clause); Michelin

Tire, 423 U.S. at 285 (Import-Export Clause). By considering the need for federal uniformity in matters

touching on foreign affairs, the Court helps prevent

individual states from taking actions that might create international disharmony or outright conflict, or

produce a patchwork of state regimes that work to the

5

detriment of the nation as a whole. See Japan Line,

441 U.S. at 450–51.

Most relevant to this case, the federal government’s ability to make policy affecting relationships

with foreign governments—without interference from

state governments—is an important consideration in

resolving questions of federal preemption. See Arizona v. United States, 567 U.S. 387, 409–10 (2012)

(holding that an Arizona law authorizing state officers to decide whether an alien should be detained for

being removable was preempted); Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 381, 388 (2000)

(holding that a Massachusetts law restricting the authority of its agencies to purchase from companies doing business with Burma was preempted); United

States v. Locke, 529 U.S. 89, 94, 103–04 (2000) (holding that Washington regulations regarding maritime

tanker transports were preempted).

The preemptive “one voice” with which the federal government speaks may come from the Executive

Branch even in the absence of a Senate-approved

treaty. For instance, in American Insurance Ass’n v.

Garamendi, 539 U.S. 396, 415–16, 424–25 (2003), the

Court held that California’s Holocaust Victim Insurance Relief Act of 1999 was preempted because it conflicted with federal Holocaust victim compensation

policy, as expressed in a number of executive agreements entered into with formerly belligerent foreign

nations. And in United States v. Pink, 315 U.S. 203,

222, 238–40 (1942), the Court held that conventional

state rules governing corporations were preempted by

an executive agreement settling claims arising from

the Russian Revolution.

6

Collectively, the above authorities teach that

if a state law interferes with agreements between the

Executive Branch and foreign nations, the conflict

raises important concerns and the state law should be

preempted.

B.

The United States agreed with France to

adopt the French definition of foie gras

for the United States market.

The detailed foie gras product ingredient

standards set forth in USDA’s Food Standards and

Labeling Policy Book have special significance to the

Republic of France. Each listed product is identified

by both its “French Product Name” and “Acceptable

English Product Name.” U.S. Dep’t of Agric., Food

Standards and Labeling Policy Book 54 (rev. web ed.

2005) (capitalization omitted), https://www.fsis.usda.gov/

sites/default/files/import/Labeling-Policy-Book.pdf.

Moreover, the well-established foie gras ingredient requirements for the products listed in the Food Standards and Labeling Policy Book are virtually the same

as the corresponding French foie gras standards.

The identicality between the USDA and French

foie gras standards is not a coincidence. The USDA

standards are the result of more than 45 years of coordination between the United States and French authorities. The two nations intended to ensure that regardless of whether foie gras foodstuffs are produced

domestically or abroad, any foie gras sold in the

United States will contain the same genuine fattened

goose or duck liver ingredients found in French foie

7

gras. We explain the history of agreements between

the United States and France below.

In 1973, the French government and trade associations promulgated standards for foie gras products. See SER-211.

In 1975, representatives of the French government petitioned the USDA to adopt the French standards. Id. The United States and France agreed that

the United States would follow these standards pending a rulemaking procedure. Id. Although a rulemaking was not finalized at that time, the United States

followed and applied the French standards over the

ensuing years. Id. Eventually, however, the standards for foie gras products became obsolete while at

the same time the marketing and consumption of foie

gras became more popular. Id.

In 1980, the French government and trade associations revised the 1973 standards for foie gras

products and requested that the United States adopt

France’s new regulations. Id.

In 1983, the French Embassy sent documents

to the Standards and Labeling Division (SLD) of

USDA’s Food Safety and Inspection Service proposing

various requirements for foie gras products, including

requiring that foie gras “must exclusively come from

specially crammed and suitably bleeded geese and

ducks.”4 SER-191–92, 208; see SER-196. The SLD

In the original French: “Les foie gras doivent provenir exclusivement d’oies ou de canards, spécialement gavés et convenablement saignés.” SER-192.

4

8

reviewed the documents and proposed an “arrangement between our respective governments.” SER196. Namely, the SLD would be “willing to follow” the

1980 French foie gras regulations, with minor modifications that did not change the basic definition of “foie

gras.” Id. The SLD Director wrote that he hoped

France would find the proposal “acceptable as an

agreement between our two governments.” SER-197.

In 1984, the Food Safety and Inspection Service

issued Policy Memo 076, stating that the SLD had decided to follow the 1980 French requirements with

only minor modifications. SER-211; see SER-193.

Consistent with the French regulations, the Policy

Memo required that foie gras is liver “obtained exclusively from specially-fed and fattened geese and

ducks.” SER-210; see Nat’l Broiler Council v. Voss, 44

F.3d 740, 747 (9th Cir. 1994) (giving USDA Policy

Memo controlling weight as agency’s interpretation of

its own regulations).

The USDA has never sought to withdraw from

its agreement with France to adopt the French definition of foie gras. To the contrary, the USDA continues

to define foie gras as “liver . . . obtained exclusively

from specially fed and fattened geese and ducks,” U.S.

Dep’t of Agric., supra, at 53, and has elsewhere explained that “specially fed and fattened” means forcefed. See Pet. App. 11.

Accordingly, the USDA’s agreement with

France to coordinate the definition of “foie gras” as the

product of force-fed geese or ducks has remained the

policy of the Executive Branch for nearly half a century. See Butz v. Economou, 438 U.S. 478, 480 (1978)

9

(observing that the USDA is an agency within the Executive Branch of the federal government).

C.

This Court should grant certiorari because California’s law banning foie gras

from “force-fed” poultry conflicts with the

United States’ agreement to adopt the

French definition of foie gras.

The petition explained how California’s law

prohibiting foie gras that “is the result of force feeding,” Cal. Health & Safety Code § 25982, conflicts

with the federal policy discussed above that requires

foie gras to be the result of force feeding. See Pet. 11–

12, 22–30. The petition also explained how California’s law is preempted because it imposes an ingredient requirement that is additional or different from

the federal requirements, and because it violates the

dormant Commerce Clause’s restrictions on extraterritorial regulation. See Pet. 30–33. The Republic of

France agrees with petitioners and urges this Court

to grant certiorari so that it can reverse the Ninth Circuit’s contrary decision.

Alongside the concerns highlighted in the petition, it is also important to emphasize the international dimension of the problem that California’s law

creates. French farmers, like farmers in other nations, understand and practice traditional methods of

animal husbandry whose roots can be traced back

hundreds of years. And yet, California is attempting

to control the conduct of farmers everywhere in the

10

world, even when its regulations have no discernable

benefit on the health and safety of California citizens.

The federal government of the United States

has decided to coordinate with France to protect the

integrity of traditional foie gras products. See supra

Part B. Those coordination efforts are thwarted by

California’s attempt to impose its own views of what

foie gras must be,5 raising important concerns touching on international relations that support this

Court’s review. See supra Part A.

The fact that California, the nation’s most populous state, has sought to enforce what amounts to a

foie gras sales ban exacerbates the degree to which

that ban undermines the national uniformity, integrity, and force and effect of the USDA’s poultry product ingredient standards. And since the USDA has

decided as a matter of policy to adopt the French foie

gras standards as its own, the California statute necessarily impugns the French standards too.

When France and the USDA negotiate agreements regarding export or import of agricultural

products, lower levels of government (e.g., the State

of California) should not be permitted to undermine

the utility of such agreements by banning the sale of

products that USDA allows to be sold, or jeopardize

the diplomatic process by which such agreements are

reached. Even more universally, foreign governments’ ability to work with and rely upon the United

California’s view that foie gras can exist without the forcefeeding of poultry is entirely unfounded—no such product exists.

SER 185–88.

5

11

States government to address any issue of international importance is undermined if individual states

within the United States can enforce laws that frustrate those efforts.

───── ⧫ ─────

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

HORVITZ & LEVY LLP

ERIC S. BOORSTIN

Counsel of Record

H. THOMAS WATSON

3601 WEST OLIVE AVENUE, 8TH FLOOR

BURBANK, CALIFORNIA 91505

(818) 995-0800

eboorstin@horvitzlevy.com

Counsel for Amicus Curiae

Republic of France

December 19, 2022