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; HVFG LLC; AND SEAN “HOT” CHANEY,

Petitioners,

v.

ROB BONTA, IN HIS OFFICIAL CAPACITY AS

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 AMICI CURIAE REASON FOUNDATION

AND MANHATTAN INSTITUTE FOR POLICY

RESEARCH IN SUPPORT OF PETITIONERS

MANUEL S. KLAUSNER

Counsel of Record

LAW OFFICES OF

MANUEL S. KLAUSNER

5538 Red Oak Drive

Los Angeles, CA 90068

(213) 675–1776

mklausner@klausnerlaw.us

ILYA SHAPIRO

MANHATTAN INSTITUTE

52 Vanderbilt Avenue

New York, NY 10017

(212) 599-7000

ishapiro@manhattan-institute.org

Counsel for Amici Curiae

i

TABLE OF CONTENTS

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

INTERESTS OF AMICI CURIAE ..............................1

SUMMARY OF THE ARGUMENT ............................2

ARGUMENT ................................................................3

I.

The PPIA Preempts California from Imposing

Additional

or

Different

“Ingredient

Requirements” on Foie Gras ................................3

A. The PPIA establishes poultry “ingredient

requirements” and preempts states from

imposing

additional

ingredient

requirements .................................................3

B. Foie gras is a poultry ingredient made

from the livers of “force fed” ducks and

geese ...............................................................5

C. This Court ruled unanimously in favor of

preemption in an analogous recent case,

National Meat Association v. Harris ............7

D. Because the California statute imposes

additional and differing ingredient

requirements on foie gras, § 25982 is

preempted by the PPIA .................................9

II. Like the Statute in National Pork Producers

Council v. Ross, § 25982 Is an Extraterritorial

Regulation and Violates the Dormant

Commerce Clause ...............................................11

ii

III. Upholding § 25982 Could Serve to Prohibit

Most Future Domestic Meat Production and

Consumption .......................................................12

A. The PPIA specifically (and federal

agricultural policy generally) seeks to

facilitate markets in poultry products ........12

B. California’s agricultural policies are

beginning to “destroy markets” in food ......13

C. This case has significant implications for

the future of U.S. meat production and

consumption.................................................16

IV. This Court Should Protect the Rights of Food

Producers

and

Consumers

Against

Unwarranted State Intrusions ..........................22

CONCLUSION ..........................................................25

iii

TABLE OF AUTHORITIES

CASES

Crosby v. Nat’l Foreign Trade Council,

530 U.S. 363 (2000) ........................................... 5, 11

Indiana v. Massachusetts,

No. 220149 (Dec. 8, 2017)...................................... 15

Missouri v. California,

No. 220148 (Filed Dec. 4, 2017) ............................ 15

Mutual Pharmaceutical Co., Inc. v. Bartlett,

570 U.S. 472 (2013) ............................................... 11

National Broiler Council v. Voss,

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

National Meat Ass’n v. Brown,

599 F.3d 1093 (9th Cir. 2010) ................................. 7

National Meat Ass’n v. Harris,

565 U.S. 452 (2012) ................................... 7, 8, 9, 19

National Pork Producers Council v. Ross,

6 F.4th 1021 (9th Cir. 2021), cert. granted,

142 S. Ct. 1413, 212 L. Ed. 2d 402 (2022) ............ 11

National Pork Producers Council v. Ross,

No. 21-468 ........................................................ 11, 15

Olff v. E. Side Union High Sch. Dist.,

cert. denied, 404 U.S. 1042 (1972) ........................ 22

Pike v. Bruce Church, Inc.,

397 U.S. 137 (1970) ............................................... 11

Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 883 (1992)......... 22

iv

Powell v. Pennsylvania,

127 U.S. 678 (1888) ......................................... 22, 23

Schollenberger v. Pennsylvania,

171 U.S. 1 (1898) ................................................... 23

United States v. Lopez,

514 U.S. 549 (1995) ............................................... 13

CONSTITUTION AND STATUTES

U.S. Const. art. I, § 8, cl. 3 ........................................ 13

U.S. Const. art. VI, cl. 2 ............................................ 13

21 U.S.C. § 451 et seq .......................2-12, 16-17, 20-21

21 U.S.C. § 451 .......................................................... 12

21 U.S.C. § 453(e) ........................................................ 3

21 U.S.C. § 453(f) ......................................................... 3

21 U.S.C. § 467e....................................................... 3, 4

21 U.S.C. § 601 et seq .................................................. 7

Cal. Health & Safety Code

§ 25982 ....................................... 2, 4, 6-12, 19-21, 23

Cal. Health & Safety Code § 25996 .......................... 14

Mass. Gen Laws. Ann. ch. 129 app. at § 1–1 ............ 15

REGULATIONS

Cal. Code Regs. § 1350 .............................................. 14

FSIS Labeling Guideline on Documentation Needed

to Substantiate Animal Raising Claims for Label

Submission, 81 Fed. Reg. 68933 (Oct. 5, 2016) ...... 6

v

RULES

Sup. Ct. R. 10(c) ........................................................... 9

OTHER AUTHORITIES

Cal. Sen. Rules Comm. Floor Analysis to AB 1437

(June 16, 2010) ...................................................... 14

Mark Caro, Foie Gras, in 1 OXFORD ENCYCLOPEDIA

OF FOOD & DRINK IN AMERICA 774 (Andrew F.

Smith ed., 2013). ................................................. 4, 5

CBInsights, Our Meatless Future: How the $90B

Global Meat Market Gets Disrupted, Nov. 9, 2017,

https://www.cbinsights.com/research/future-ofmeat-industrial-farming/ ...................................... 18

Julia Child, FROM JULIA CHILD’S KITCHEN (1975) ...... 5

Julia Child, 1 MASTERING THE ART OF FRENCH

COOKING ................................................................... 5

Richard A. Epstein & Michael S. Greve, Introduction:

Preemption in Context 1, in FEDERAL PREEMPTION:

STATES’ POWERS, NATIONAL INTERESTS (Epstein &

Greve eds. 2007) .................................................... 10

Auguste Escoffier, MA CUISINE (1966)........................ 5

Thomas Jefferson, Notes on the State of Virginia,

reprinted in EARLY AMERICAN WRITING (Giles

Gunn ed., 1994) (1785) .......................................... 24

Thomas Keller, THE FRENCH LAUNDRY COOKBOOK

(1999) ....................................................................... 5

vi

Lisa Kramer, ‘Clean Meat’ Could be a

Major Revolution for the Agriculture Sector,

GLOBE & MAIL, Nov. 30, 2017,

https://www.theglobeandmail .com/report-onbusiness/rob-commentary/clean-meat-could-bea-major-revolution-for-the-agriculture-sector

/article37127259/ ................................................... 17

Baylen J. Linnekin, The “California Effect” & the

Future of American Food: How California’s

Growing Crackdown on Food & Agriculture

Harms the State & the Nation, 13 CHAPMAN L.

REV. 357 (2010)...................................................... 14

James Madison, Dec. 9, 1787 Letter to Thomas

Jefferson, in 1 THE REPUBLIC OF LETTERS: THE

CORRESPONDENCE BETWEEN JEFFERSON &

MADISON 1776-1826 (James Morton Smith ed.,

1995) ...................................................................... 24

James Madison, Dec. 20, 1787 Letter to Thomas

Jefferson, in 1 THE REPUBLIC OF LETTERS: THE

CORRESPONDENCE BETWEEN JEFFERSON &

MADISON 1776-1826 (James Morton Smith ed.,

1995) ................................................................ 24, 25

Rick Morgan, Bill Gates & Richard Branson are

Betting Lab-Grown Meat Might be the Food of

the Future, CNBC.com, Mar. 23, 2018,

https://www.cnbc.com/2018/03/23/bill-gates-andrichard- branson-bet-on-lab-grown-meatstartup.html .................................................... 17, 18

vii

Alisa Mullins, Top 5 Reasons to Ban Foie Gras

Nationwide, PETA, July 1, 2012,

https://www.peta.org/blog/top-5- reasons-banfoie-gras-nationwide/ ............................................. 19

Ingrid Newkirk, Is There Such a Thing as ‘Humane’

Meat?, PETA, Sept. 28, 2012,

https://www.peta.org/blog/peta-s-positionsustainable -meat/ ................................................. 19

North American Meat Inst., The United States Meat

Industry at a Glance,

https://www.meatinstitute.org/index.php?ht=

d/sp/i/47465/pid/47465........................................... 21

Lucy Pasha-Robinson, Lab-Grown ‘Clean’ Meat

Could be on Sale by End of 2018, Says Producer,

INDEPENDENT, Mar. 2, 2018,

https://www.independent.co.uk/news/science/

clean- meat-lab-grown-available-restaurants2018-global- warming-greenhouse-emissionsa8236676.html ....................................................... 18

Signing Message of Governor Arnold

Schwarzenegger, Sen. Bill 1520, 2003–2004 Reg.

Sess. (Sept. 29, 2004) ............................................ 20

U.S. Dept. of Agric. & U.S. Dept. of H. & Human

Serv., Dietary Guidelines for Americans, 2010

(Dec. 2010), available at

https://www.cnpp.usda.gov/

sites/default/files/dietary_guidelines_for_

americans/ PolicyDoc.pdf ...................................... 16

viii

U.S. Dept. of Agric., Food Standards and Labeling

Policy Book (Aug. 2005),

https://www.fsis.usda.gov/OPPDE/larc/Policies/

Labeli ng_Policy_Book_082005.pdf ........................ 6

U.S. Dept. of Agric., USDA Strategic Goals 2018–

2022,

https://www.usda.gov/sites/default/files/docume

nts/usda-strategic-goals-2018-updated-1.pdf ....... 12

1

INTEREST OF AMICI CURIAE 1

Reason Foundation is a national, nonpartisan, and

nonprofit public policy think tank, founded in 1978.

Reason’s mission is to advance a free society by

applying and promoting libertarian principles and

policies—including free markets, individual liberty,

and the rule of law. Reason supports dynamic marketbased public policies that allow and encourage

individuals and voluntary institutions to flourish.

Reason advances its mission by publishing Reason

magazine, as well as commentary on its websites, and

by issuing policy research reports. To further Reason’s

commitment to “Free Minds and Free Markets,”

Reason selectively participates as amicus curiae in

cases raising significant constitutional issues.

The Manhattan Institute for Policy Research is a

nonpartisan public policy research foundation whose

mission is to develop and disseminate new ideas that

foster greater economic choice and individual

responsibility. To that end, it has historically

sponsored scholarship and filed briefs supporting

economic freedom and limited government.

Amici have a vital interest in this case because it

involves questions concerning federal and state

regulation, the national economy, the free market, and

food freedom. Given both the essential nature of food

1 No part of this brief was authored by counsel for any party. No

person other than amici curiae, their members, or their counsel

made any monetary contribution intended to fund its preparation

or submission. Counsel of record provided timely notice to all

parties of his intent to file this brief, and all parties have provided

their written consent.

2

in Americans’ daily lives and growing regulatory

threats to agricultural and food producers, amici

believe states should not and may not impose

unwarranted burdens on interstate commerce in food.

SUMMARY OF THE ARGUMENT

Restrictions on the free flow of goods between

states are exactly the sort of interstate trade barriers

that the federal Constitution was intended to prohibit.

Section 25982 of the California Health and Safety

Code prohibits the sale in California of a wholesome

food ingredient in contravention of the PPIA and

regulates extraterritorial conduct in violation of the

dormant Commerce Clause. The law also poses a

grave challenge to the future of food and agriculture

in this country. The Ninth Circuit’s upholding of

§ 25982 could undermine our national markets in food

and decide ultimately whether all future meat

production will be outlawed in America. For these

reasons, this Court should grant the petition for

certiorari.

3

ARGUMENT

I.

The PPIA Preempts California from

Imposing

Additional

or

Different

“Ingredient Requirements” on Foie Gras

A.

The

PPIA

establishes

poultry

“ingredient

requirements”

and

preempts

states

from

imposing

additional ingredient requirements.

In 1957, Congress passed the Poultry Products

Inspection Act (“PPIA”). Pub. L. No. 85–172 (Aug. 28,

1957) (codified at 21 U.S.C. § 451 et seq.). The law

directed the U.S. Department of Agriculture (“USDA”)

to provide for compulsory inspection of poultry

products to be purchased by American consumers in

order to ensure the wholesomeness of those products.

Id. The PPIA’s regulatory oversight includes poultry

products made “wholly or in part from” a duck. See 21

U.S.C. §§ 453(e) & (f).

In 1968, Congress amended the PPIA by passing

the Wholesome Poultry Products Act (“WPPA”) Pub.

L. No. 90–492 (Aug. 18, 1968). In pertinent part, the

WPPA made two notable additions to the PPIA. First,

the WPPA added a new section to the PPIA, § 23,

which outlined the PPIA’s responsibility for

regulating the “[m]arking, labeling, packaging, or

ingredient requirements” for poultry. 2 Id. Second, and

relatedly, the WPPA added an express preemption

provision that prohibits states from imposing any such

2 The relevant part of that law is codified at 21 U.S.C. § 467e.

4

“requirements . . . in addition to, or different than,

those made under this chapter[.]” 21 U.S.C. § 467e.

Foie gras, the French term for “fatty liver,” is an

ingredient made from the liver of a goose or duck that

has been enlarged beyond its normal size. See, e.g.,

Mark Caro, Foie Gras, in 1 OXFORD ENCYCLOPEDIA OF

FOOD & DRINK IN AMERICA 774 (Andrew F. Smith ed.,

2013). Section 25982 of the California Health & Safety

Code, adopted in 2004 and implemented in 2012, bans

the sale of products that are “the result of force feeding

a bird for the purpose of enlarging the bird’s liver

beyond normal size.” Cal. Health & Safety Code

§ 25982.

The parties in the instant case agree the PPIA

preempts states from establishing “ingredient

requirements” that differ from or are in addition to the

PPIA’s ingredient requirements. See Association des

Éleveurs de Canards et d’Oies du Québec v. Becerra,

870 F.3d 1140, 1146 (9th Cir. 2017). The question the

instant case presents, then, is whether the PPIA’s

express preemption of additional or different stateestablished “ingredient requirements” preempts

California’s ban of the sale of foie gras. If California’s

sales ban imposes “ingredient requirements” that are

“in addition to, or different than” the PPIA’s

requirements, then § 25982 is unconstitutional and is

preempted by the PPIA. See Association des Éleveurs

de Canards et d’Oies du Québec v. Harris, 79 F. Supp.

3d 1136, 1144 (C.D. Cal. 2015) (“[T]he PPIA preempts

§ 25982 if a sales ban on poultry products resulting

from force feeding a bird imposes an ingredient

requirement that is in addition to or different than

those imposed by the PPIA.”). The instant case further

5

presents the question whether California’s sales ban

is preempted by the PPIA because the state’s

proscription of the only federally defined method of

producing foie gras makes it impossible to comply with

both state and federal ingredient requirements. See

Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363,

372 (2000).

B. Foie gras is a poultry ingredient made

from the livers of “force fed” ducks and

geese.

The process of feeding ducks or geese through a

tube is an essential step in the ancient method of

fattening the livers of these birds to produce the

ingredient foie gras. The method of producing this

ingredient is known by its French name, gavage. See,

e.g., Caro, Foie Gras.

Beginning in the 1960s, many cookbooks available

in the United States began to highlight foie gras as an

essential ingredient in French haute cuisine. See

generally e.g., Julia Child, FROM JULIA CHILD’S

KITCHEN (1975) (describing various recipes that

include the ingredient); Auguste Escoffier, MA

CUISINE (1966) (detailing more than a dozen recipes

that feature various foie gras ingredients, including

whole lobe and sliced foie gras); Julia Child, 1

MASTERING THE ART OF FRENCH COOKING

(1961)(introducing Americans to foie gras). 3 The

growing popularity of foie gras in the United States

3 The popularity of foie gras has only grown since that time. See,

e.g., Thomas Keller, THE FRENCH LAUNDRY COOKBOOK 104 (1999)

(describing foie gras, which the renowned chef and author uses

in many dishes, as “an expensive ingredient”).

6

during this period likely spurred the governments of

France and the United States to engage in

negotiations over the essential ingredients and their

percentages in the 1970s. These negotiations resulted

in the establishment of joint ingredient requirements

for foie gras and foie gras products. See Petition at 9.

More recently, shortly after California adopted

§ 25982, the USDA defined foie gras in its Food

Standards and Labeling Policy Book (“Book”). See

generally U.S. Dept. of Agric., Food Standards and

Labeling Policy Book (Aug. 2005), available at

https://www.fsis.usda.gov/OPPDE/larc/Policies/Labeli

ng_Policy_Book_082005.pdf. Notably, the Book is

issued by the USDA’s Food Safety & Inspection

Service (“FSIS”), the same branch of the USDA

responsible for enforcing the PPIA. In general, the

Book contains important guidance around the

relevant “ingredient requirements” for various foods

regulated by the USDA under the PPIA and other

laws. See id.

The Book defines foie gras “as obtained exclusively

from specially fed and fattened geese and ducks.” Id.

The Book also declares that foie gras pate must

contain at least 50 percent liver. Id. The USDA’s

definition of foie gras is clear. Under USDA’s

interpretation of its own regulations, just as chicken

breast from chickens raised without antibiotics is an

‘ingredient’ in chicken nuggets, so too is duck liver

from force-fed ducks an ‘ingredient’ in foie gras

products. See FSIS Labeling Guideline on

Documentation Needed to Substantiate Animal

Raising Claims for Label Submission, 81 Fed. Reg.

68933 (Oct. 5, 2016). Yet the Ninth Circuit determined

7

that § 25982, which imposes additional and differing

ingredient requirements on a poultry ingredient that

necessarily causes foie gras to be subject to the PPIA,

namely livers obtained from a “force fed” duck or

goose, does not violate the PPIA’s preemption

provision.

C. This Court ruled unanimously in favor

of preemption in an analogous recent

case, National Meat Association v. Harris

Though the PPIA has been in place now for more

than five decades, this Court has not yet had an

opportunity to rule on the law. But in this Court’s

clear ruling in National Meat Ass’n v. Harris, 565 U.S.

452 (2012), which centered on a federal law analogous

to the PPIA—the Federal Meat Inspection Act

(“FMIA”) 4—the Court held unanimously that the

FMIA preempted a California law analogous to

§ 25982.

In National Meat Ass’n v. Brown, 599 F.3d 1093

(9th Cir. 2010), the Ninth Circuit had ruled that the

FMIA allowed California to prohibit certain animals

from being subject to slaughter and sale as meat. This

Court rejected that reasoning outright. In a 9–0

ruling, this Court struck down the California

prohibition on the slaughter and sale of certain

animals and held that states are not free to decide

which animals may be slaughtered for sale as meat

where the state law regulates or runs “smack into”

federal law. 565 U.S. 452 at 467.

4 21 U.S.C. § 601 et seq.

8

Just as the FMIA does for meat and meat products,

the PPIA regulates not just the inspection, but—as

even the Ninth Circuit has long recognized—also the

sale of poultry and poultry products. See National

Broiler Council v. Voss, 44 F.3d 740, 743 (9th Cir.

1994) (per curiam) (“The PPIA regulates the

distribution and sale of poultry and poultry

products[.]”). Like the FMIA, the PPIA is a pervasive

regulatory scheme, and its preemption clause does not

lend itself to the narrow interpretation given it by the

Ninth Circuit. Compare National Meat Ass’n, 565 U.S.

452 at 459 (finding the FMIA’s preemption clause

“sweeps widely”), with 870 F.3d 1140. See also 79 F.

Supp. 3d 1136, 1144 (finding the PPIA’s preemption

clause “sweeps broadly”).

This Court ruled in National Meat Ass’n that

dressing up the regulation of slaughter facilities in the

costume of a sales ban, as California has done with

§ 25982 as concerns poultry processing facilities, is

akin to putting lipstick on a pig and would “make a

mockery” of the relevant preemption provision. 5 In the

instant case, the majority in the Ninth Circuit found

that § 25982 was not preempted on the reasoning of

National Meat Ass’n because the sales ban “works at a

remove” from farming and slaughterhouse activities.

Association des Éleveurs de Canards et d’Oies du

Quebec v. Bonta, 33 F.4th 1107, 1115 (9th Cir.

5 See 565 U.S. 452 at 464 (“[I]f the sales ban were to avoid the

FMIA’s preemption clause, then any State could impose any

regulation on slaughterhouses just by framing it as a ban on the

sale of meat produced in whatever way the State disapproved.

That would make a mockery of the FMIA’s preemption

provision.”).

9

2022)(quoting National Meat Ass’n, 565 U.S. 452 at

467). However, Judge VanDyke recognized in his

dissent that Ҥ 25982 is in fact more intrusive on the

foie gras sellers than the slaughterhouses in National

Meat.” 33 F.4th 1107 at 1125. Judge VanDyke found

that “California’s § 25982 overtly regulates the process

by which saleable foie gras can be produced.” Id. at

1126. Amici support the dissent’s conclusion that the

majority’s argument is “no different than the one the

Supreme Court considered and rejected in National

Meat.” Id. This Court was correct to reject the Ninth

Circuit’s reasoning in National Meat Ass’n and should

grant the petition in the instant case in order to do the

same. See Rule 10(c) (stating as a compelling reason

for granting review a court of appeals “has decided an

important federal question in a way that conflicts with

relevant decisions of this Court”).

D. Because the California statute imposes

additional and differing ingredient

requirements on foie gras, § 25982 is

preempted by the PPIA.

Federal preemption of state law is an appropriate

tool for courts to wield when a state seeks to impose

unwarranted burdens on the national economy in an

area already subject to a federal law that contains an

express preemption provision. Federal laws that are

intended to facilitate commerce in food, including the

FMIA and PPIA, take precedence over (and are

preferable to) state laws such as § 25982 that conflict

with federal law by prohibiting such commerce. When

such conflicts arise, federal preemption acts as a vital

bulwark against “unwarranted and inconsistent state

interferences with the national economy[.]’’ See

10

Richard A. Epstein & Michael S. Greve, Introduction:

Preemption in Context 1, in FEDERAL PREEMPTION:

STATES’ POWERS, NATIONAL INTERESTS (Epstein &

Greve eds. 2007).

The record below has established that the only way

to make foie gras that complies with the federal

definitions and requirements is through the feeding

process of gavage, which specially fattens the bird’s

liver. Section 25982 is expressly preempted by the

PPIA because Petitioners’ foie gras products comply

with all of the PPIA’s requirements—but still violate

§ 25982 because their products contain an ingredient

prohibited by § 25982: foie gras from ducks that have

been “force-fed.” Though the PPIA could establish

different or additional ingredient requirements, such

as requiring foie gras products to be made from the

livers of birds that are not “force fed,” the PPIA

contains no such requirements. 79 F. Supp. 3d 1136 at

1145 (“It is undisputed that the PPIA and its

implementing regulations do not impose any

requirement that foie gras be made with liver from

non-force-fed birds.”). Consequently, § 25982 is

expressly preempted because it imposes an ingredient

requirement in addition to and different than that

required by the PPIA.

Section 25982 is further preempted because

California law mandates that foie gras not include

force-fed products and federal law requires foie gras to

be produced by force-feeding, making it impossible to

comply with both. See Crosby v. Nat’l Foreign Trade

Council, 530 U.S. 363, 372 (2000). Untroubled by this

conflict, the Ninth Circuit majority concludes that “the

sellers can still force feed birds to make their products.

11

They just cannot sell those products in California.” 33

F.4th 1107 at 1114. However, such a “stop-selling”

theory has not only been rejected by this Court in

Mutual Pharmaceutical Co., Inc. v. Bartlett, 570 U.S.

472 (2013), but it contravenes the principles of

federalism embodied in the Supremacy Clause of the

U.S. Constitution and this Court’s other preemption

jurisprudence. The solution is not for foie gras

producers—or any other agricultural producers—to

withdraw from the market in a given state when the

state’s regulations are incompatible with federal

requirements. Rather, the state law must yield.

Section 25982 is thus preempted by the PPIA.

II. Like the Statute in National Pork Producers

Council v. Ross, § 25982 Is an Extraterritorial

Regulation and Violates the Dormant

Commerce Clause

Amici agree with the Petition’s arguments

regarding § 25982 as an unconstitutional

extraterritorial regulation. California’s sales ban

unduly burdens the interstate market for a wholesome

poultry product without serving a legitimate local

interest. See Pike v. Bruce Church, Inc., 397 U.S. 137,

142 (1970). The Ninth Circuit majority in the instant

case relied on the court of appeals’ decision in National

Pork Producers Council v. Ross, 6 F.4th 1021 (9th Cir.

2021), cert. granted 212 L. Ed. 2d 402, 142 S. Ct. 1413

(2022), which is now under review before this Court in

National Pork Producers Council v. Ross, No. 21-468

(NPPC). Amici agree that this Court should grant the

Petition or hold it, pending the Court’s decision in

NPPC.

12

III. Upholding § 25982 Could Serve to Prohibit

Most Future Domestic Meat Production and

Consumption

The outcome of the instant case will determine the

future of foie gras sales in California. But the instant

case is about so much more than foie gras. The Ninth

Circuit’s precedential opinion could decide the fate of

meat production involving the slaughter of live

animals in America.

A. The PPIA specifically (and federal

agricultural policy generally) seeks to

facilitate markets in poultry products.

The PPIA serves two main purposes. First, the

PPIA seeks to prevent the introduction into commerce

of “[u]nwholesome, adulterated, or misbranded

poultry products” that would harm poultry consumers.

21 U.S.C. § 451. Second, the PPIA seeks to guard

against factors that could “destroy markets” for such

wholesome, unadulterated, and properly branded

poultry products. Id. These goals are deeply ingrained

in the mission and purpose of the USDA itself. See,

e.g., U.S. Dept. of Agric., USDA Strategic Goals 2018–

2022, https://www.usda.gov/sites/default/files/docume

nts/usda-strategic-goals-2018-updated-1.pdf

(describing the USDA’s strategic goals to “maximize

the ability of American agricultural producers to

prosper . . . [p]romote American agricultural products

and exports. . . [and p]rovide all Americans access to a

safe, nutritious, and secure food supply”). More

broadly, both the federal Constitution and America’s

13

national economic policy seek to foster and facilitate

commerce between and among the states. 6

B. California’s agricultural policies are

beginning to “destroy markets” in food.

When it comes to food and agriculture, California is

truly unique among our states. On the one hand, no

state’s food and agriculture contributes more to the

national economy than does that of California. On the

other hand, in recent years no state has obstructed

commerce in food and agricultural products to the

extent California has done. This trend has troubling

implications:

California’s turn against food is worrisome

across the country . . . since in addition to its

place as the nation’s breadbasket and culinary

trendsetter, California is the country’s cultural

and regulatory bellwether. Regulations passed

in California often become laws elsewhere, at

both the state and federal level. Companies

that can no longer market a food in California

may be forced to decide whether that product—

robbed of twelve percent of [the U.S.] market—

is still viable.

Baylen J. Linnekin, The “California Effect” & the

Future of American Food: How California’s Growing

Crackdown on Food & Agriculture Harms the State &

6 See U.S. Const. art. I, § 8, cl. 3 (declaring Congress’s plenary

power over the regulation of interstate commerce); United States

v. Lopez, 514 U.S. 549, 574 (1995) (“[W]e have a single market

and a unified purpose to build a stable national economy.”). The

federal Constitution further establishes the supremacy of federal

law over conflicting state law. U.S. Const. art. VI, cl. 2.

14

the Nation, 13 CHAPMAN L. REV. 357, 358 (2010)

(internal citations omitted).

California’s foie gras ban is a primary example of a

food or agricultural law that erects unconstitutional

obstacles and barriers to the national food economy.

But the law does not stand alone. Other recent

California laws evidence both a comparable intent and

impact. Worse still, other states have begun to follow

California’s lead, passing laws that pose similar

challenges to the existence of the national food

economy.

In 2008, for example, California adopted a law that

requires poultry eggs, pork, and veal sold in the state

to come exclusively from animals that were not

confined within traditionally-sized enclosures. Cal.

Code Regs. § 1350. At the time it was adopted, the law

applied only to in-state producers. Subsequently, the

state, in 2010, passed a law that expanded the 2008

law to eggs traveling in interstate or foreign

commerce. Cal. Health & Safety Code § 25996. In

enacting the California egg ban, the legislature relied

on the very statute at issue in this case. See Cal. Sen.

Rules Comm. Floor Analysis to AB 1437 (June 16,

2010). In 2016, Massachusetts adopted a similar law,

which also applies to out-of-state and foreign

producers. See Mass. Gen Laws. Ann. ch. 129 app. at

§ 1–1.

In 2017, Missouri and twelve other states sued

California in this Court to overturn the state’s ban on

the sale of wholesome, USDA-approved eggs. Missouri

v. California, No. 220148 (Filed Dec. 4, 2017). In a

separate suit filed in this Court soon after, Indiana

15

joined a dozen states—including many that had sued

California—to sue Massachusetts in order to overturn

its law. Indiana v. Massachusetts, No. 220149 (Dec. 8,

2017) (“Massachusetts’s attempt to impose regulatory

standards on farmers from every other state by

dictating conditions of housing for poultry, hogs, and

calves when their products will be offered for sale in

Massachusetts.”). This Court invited the views of the

Solicitor General in both cases, but ultimately denied

leave to file bills of complaint.

Currently before the court is National Pork

Producers Council v. Ross, No. 21-468, which pits the

National Pork Producers Council and the American

Farm Bureau Federation, representing the nation’s

leading pork producers—who raise, slaughter, and

process meat from pigs for sale across the country—

against the state of California.

After this Court agreed to hear the appeal, that

ballot measure, Proposition 12, was adopted in 2018

by nearly two-thirds of California voters. Proposition

12 prohibits confining livestock “in a cruel manner”

and requires livestock animals whose meat, offspring,

or eggs will be sold in California to be confined in

spaces large enough that they have sufficient room to

lie down, turn around, or spread their wings. Those

found to have violated the law could face fines and

possible jail time.

California’s foie gras ban, along with the California

and Massachusetts egg and livestock laws—and the

resulting litigation that pits multiple states against

California and Massachusetts, respectively—raise

serious questions about the future of animal

16

agriculture in America. If states continue to adopt

laws such as those in California and Massachusetts,

then these states will have made “a mockery” not just

of the preemption provisions of the FMIA, PPIA, and

other federal laws, but also of the very notion that the

foods produced in this country under those laws will

continue to be available in the very near future.

The challenges such laws pose are stark. If this

Court allows states to prohibit interstate commerce in

poultry products and other animal products that are

inspected and deemed wholesome, unadulterated, and

properly branded under federal law, then laws like

these from California, Massachusetts, and other

states could ultimately destroy our national market in

food.

C. This case has significant implications for

the future of U.S. meat production and

consumption.

Poultry is one of the top three foods in the American

diet. See U.S. Dept. of Agric. & U.S. Dept. of H. &

Human Serv., Dietary Guidelines for Americans, 2010

(Dec. 2010), available at https://www.cnpp.usda.gov/

sites/default/files/dietary_guidelines_for_americans/

PolicyDoc.pdf (listing “[c]hicken and chicken mixed

dishes” as the third-greatest source of calories in the

American diet). 7 Hence, the PPIA regulates one of the

leading sources of calories in the American diet.

Today, a well-funded movement is underway that

seeks to replace proteins in Americans’ diets that are

7 Poultry trails only grain-based desserts and yeast breads as a

top source of calories in the American diet. Id.

17

derived from animals with some combination of plantbased and lab-grown “meat” ingredients. 8 The latter is

derived from the cells of living animals but does not

require the slaughter of those or other animals.

Instead, cells are obtained from a living animal

through a cheek swab or other means; grown and

multiplied in a laboratory; and shaped and otherwise

manipulated to resemble the traditional food product.

See id. Proponents of both plant-based meat

alternatives and lab-grown meats argue that these

foods are superior to animal-based foods and benefit

animals, humans, and the environment. See Opinion,

Lisa Kramer, ‘Clean Meat’ Could be a Major

Revolution for the Agriculture Sector, GLOBE & MAIL,

Nov.

30,

2017,

https://www.theglobeandmail

.com/report-on- business/rob-commentary/clean-meatcould-be-a-major-revolution-for-the-agriculture-sector

/article37127259/. This movement seeks to introduce

plant-based or lab-grown alternatives to many foods

currently derived from living animals, including

hamburgers, chicken breasts, and pork chops. While

plant-based alternatives to meat products that mimic

the look and taste of those meat products have existed

for decades, lab-grown meat is also now at our

doorstep. Predictions suggest the widespread debut of

lab-grown meat may take place in the near future. See,

e.g., Lucy Pasha-Robinson, Lab- Grown ‘Clean’ Meat

Could be on Sale by End of 2018, Says Producer,

INDEPENDENT,

Mar.

2,

2018,

See, e.g., Rick Morgan, Bill Gates & Richard Branson are

Betting Lab-Grown Meat Might be the Food of the Future,

CNBC.com, Mar. 23, 2018,

https://www.cnbc.com/2018/03/23/bill-gates-and-richardbranson-bet-on-lab-grown-meat-startup.html.

8

18

https://www.independent.co.uk/news/science/cleanmeat-lab-grown-available-restaurants-2018-globalwarming-greenhouse-emissions-a8236676.html.

A

market exists for such products. One national survey

found that one in five Americans would eat lab-grown

meat. See Pew Research Center, U.S. Views of

Technology and the Future, Apr. 2014, available at

http://www.pewinternet.org/2014/04/17/us-views-oftechnology-and-the-future/.

But the entrepreneurs behind meat alternatives

are thinking in grander terms. Recent research has

predicted that “a meatless food industry featuring labgrown meat, seafood substitutes, and insect protein

[may] be the future of food[.]” See CBInsights, Our

Meatless Future: How the $90B Global Meat Market

Gets

Disrupted,

Nov.

9,

2017,

https://www.cbinsights.com/research/future-of- meatindustrial-farming/. That future may well include labgrown “foie gras.” Indeed, one of the ingredients a

California-based startup is seeking to recreate in a lab

is foie gras. See Morgan, Bill Gates & Richard Branson

are Betting Lab-Grown Meat Might be the Food of the

Future (noting JUST, a vegan-foods company, is

“experimenting with foie gras”).

Even as some businesses seek to use technological

advances to replace foods made from live animals with

plant-based and lab-grown alternatives, some animalrights groups are intent on using law and policy to

prohibit the slaughter and sale of all animal-based

foods altogether. For example, PETA, a powerful

animal-rights group that supports California’s

§ 25982, has called for a federal foie gras ban. See

Alisa Mullins, Top 5 Reasons to Ban Foie Gras

19

Nationwide,

PETA,

July

1,

2012,

https://www.peta.org/blog/top-5-reasons-ban-foiegras-nationwide/. But the group has also declared that

“[a]nimals are not ours to eat,” regardless of the

species in question. See Ingrid Newkirk, Is There Such

a Thing as ‘Humane’ Meat?, PETA, Sept. 28, 2012,

https://www.peta.org/blog/peta-s-position-sustainable

-meat/.

California has already contemplated a future in

which the state prohibits the sale of meat entirely.

Despite this Court’s ruling in National Meat Ass’n, in

which a unanimous Court held that states are not free

to decide which animals may or may not be turned into

meat 9, the Ninth Circuit in the instant case ducked

any inclination to reject California’s mounting frolic

with Prohibition by affirming its holding in Ass’n des

Éleveurs de Canards et d’Oies du Quebec v. Becerra,

870 F.3d 1140 (9th Cir. 2017), that “even if section

25982 results in the total ban of foie gras regardless of

its production method,” it would still be a

constitutionally valid state law. 870 F. 3d 1140, 1150.

By failing to reject California’s argument, the

Ninth Circuit has pointed the way for a future in

which only plant-based and lab-grown meat

alternatives will be available for sale in California and

other states. Under the Ninth Circuit’s ruling, a state

could reasonably conclude the PPIA (and FMIA and

other constitutional provisions) does not prohibit a

state from banning all sales of meat derived from

living animals. A state such as California would

seemingly then be free to ban the sale within its

9 See Section I.C, supra.

20

borders of any and all meat products derived from

living animals. Such a ban could include everything

from foie gras to ground beef and pork chops.

Little imagination is required to envision how such

a ban might be enacted. Using the Ninth Circuit’s

apparent embrace of California’s seemingly limitless

powers to ban foods, a state could argue that such a

ban is necessary because the state has determined

that animal slaughter, which necessarily involves the

death of an animal, is cruel and inhumane. Cf. 870

F.3d 1140 at 1142 (“California determined that the

force-feeding process . . . is cruel and inhumane.”).

A resulting law might declare simply as follows: “A

product may not be sold in this state if it is the result

of animal slaughter.” A state governor signing such a

law might declare, analogous to the Orwellian

language

then-California

Gov.

Arnold

Schwarzenegger used upon signing § 25982 into law,

that the law’s “intent is to ban the current production

practice of slaughtering animals for their meat. It does

not ban the food product, meat.” 10 Just as California

did with foie gras ingredients, a state adopting such a

ban might delay implementation of the law for several

years, ostensibly providing meat producers time to

create animal products that are not the product of

animals.

10 Cf. Signing Message of Governor Arnold Schwarzenegger, Sen.

Bill 1520, 2003–2004 Reg. Sess. (Sept. 29, 2004) (“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.”).

21

Such a law would—just like § 25982—come at the

expense of the farmers, chefs, and others who wish to

sell animal products, and the consumers who wish to

buy animal products obtained from living animals

slaughtered under the PPIA, FMIA, and other

relevant laws. Under this scenario, America’s

livestock farmers and consumers in all fifty states

would be the obvious losers. Indeed, such a ruling

could very well serve as the death knell for American

livestock farmers, “the largest segment of U.S.

agriculture” and the engine responsible for

contributing a minimum of hundreds of billions of

dollars annually to the U.S. economy. See North

American Meat Inst., The United States Meat Industry

at a Glance,

https://www.meatinstitute.org/index.php?ht=d/sp/i/47

465/pid/47465 (last visited Dec. 15, 2022).

To be clear, companies that produce meatalternatives, along with advocacy groups such as

PETA, are free—and must remain free—both to

advocate in favor of, and to practice, their preferred

diets. But it is equally true that those who choose to

eat foie gras, hamburgers, pork chops, and other

products that contain ingredients derived from living

animals, must also remain free to do so.

Finally, amici have no opinion whatsoever about

whether or not the future of food in America should

involve—or will involve—the killing of animals for

food. But amici would oppose in the most profound

terms a future of food in America which involves the

killing of no animals because states have banned

animal slaughter. Such a future would trample an

22

essential liberty interest of all Americans, namely the

freedom to make one’s own food choices.

IV. This Court Should Protect the Rights of

Food Producers and Consumers Against

Unwarranted State Intrusions

Throughout the years, several Justices of this

Court have discussed the importance of protecting an

individual’s right to make his or her own food choices.

Justice Scalia, in dicta, indicated that this Court need

not recognize a right to starve oneself in order to

protect a “right to eat.” See Planned Parenthood of

Southeastern Pennsylvania v. Casey, 505 U.S. 883, 980

at n.1 (1992) (Scalia, J., dissenting) (“It drives one to

say that the only way to protect the right to eat is to

acknowledge the constitutional right to starve oneself

to death.”). Earlier, Justice William O. Douglas

declared that “one’s taste for food . . . is certainly

fundamental in our constitutional scheme—a scheme

designed to keep government off the backs of people.”

See Olff v. E. Side Union High Sch. Dist., cert. denied,

404 U.S. 1042, 1044 (1972) (Douglas, J., dissenting).

In an 1888 case heard by this Court that concerned

a fatty and then-controversial food of French origin,

oleomargarine, Justice Stephen Field wrote that the

freedom to produce and obtain food is among the

integral rights of all Americans. See Powell v.

Pennsylvania, 127 U.S. 678, 690 (1888) (Field, J.,

dissenting) (“[T]he gift of life was accompanied by the

right to seek and produce food [and] is an element of

that freedom which every American citizen claims as

his birthright.”). Justice Field called these rights

essential elements of liberty. See id. at 692 (“The right

23

to procure healthy and nutritious food . . . [is] among

those inalienable rights, which, in my judgment, no

state can give, and no state can take away, except in

punishment for a crime.”). Notably, in series of cases

brought a decade later, in 1898, this Court embraced

Justice Field’s reasoning and denied states the power

to ban oleomargarine. See Schollenberger v.

Pennsylvania, 171 U.S. 1, 14 (1898) (rejecting a state’s

claim it may “absolutely prohibit the introduction

within its borders of an article of commerce which is

not adulterated, and which in its pure state is

healthful”). Schollenberger and its companion cases

remain good law.

These views of individual rights pertaining to food

and of government’s lack of authority to ban a food

product are bolstered by the words of Founding

Fathers Thomas Jefferson and James Madison. Their

own respective writings (and writings from one to

another) provide additional reasons to be deeply

skeptical of the legitimacy of bans such as that

mandated under § 25982. Jefferson and Madison,

respective authors of the Declaration of Independence

and the Bill of Rights, abhorred any law which would

ban a food. According to Jefferson:

The legitimate powers of government extend to

such acts only as are injurious to others. But it

does me no injury for my neighbour to say there

are twenty gods, or no god. It neither picks my

pocket nor breaks my leg . . . . Was the

government to prescribe to us our medicine and

diet, our bodies would be in such keeping as our

souls are now. Thus in France the emetic was

24

once forbidden as a medicine, and the potato as

an article of food . . . .

Thomas Jefferson, Notes on the State of Virginia,

reprinted in EARLY AMERICAN WRITING 437, 441 (Giles

Gunn ed., 1994) (1785).

Madison, on the other hand, was outraged by an

effort in his home state of Virginia to ban various

foods. Madison, in a letter to Jefferson, criticized the

Virginia legislature for introducing “a Resolution for

prohibiting the importation of Rum, brandy, and other

ardent spirits[.]” See James Madison, Dec. 9, 1787

Letter to Thomas Jefferson, in 1 THE REPUBLIC OF

LETTERS: THE CORRESPONDENCE BETWEEN JEFFERSON

& MADISON 1776-1826 510 (James Morton Smith ed.,

1995) (emphasis in original). Madison referred to the

proposed ban as beyond the reach of any one state,

beyond the power of any national government, and

“little short of madness.” Id. Madison wrote to

Jefferson a second time about the resolution, this time

calling the proposed ban one of “several mad freaks”

the Virginia Assembly had embarked upon. See James

Madison, Dec. 20, 1787 Letter to Thomas Jefferson, in

1 THE REPUBLIC OF LETTERS: THE CORRESPONDENCE

BETWEEN JEFFERSON & MADISON 1776-1826 515

(James Morton Smith ed., 1995). He elaborated that

the bill would ban “the importation of Rum, brandy,

and all other spirits not distilled from some American

production[,]” along with foreign beef, cheese, and

other foods. See id. (emphasis in original). Madison

called the bill a “despotic measure” that required “the

most despotic means” of enforcement.

25

Taken together, Jefferson’s denunciation of the

“coercion” evident in France’s potato ban and

Madison’s characterization of Virginia’s proposed ban

on various liquors and foods with words such as

“lunacy,” “madness,” and “despoti[sm]” demonstrate

that these leading Founding Fathers opposed laws

that would serve to ban various foods.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

MANUEL S. KLAUSNER

Counsel of Record

LAW OFFICES OF

MANUEL S. KLAUSNER

5538 Red Oak Drive

Los Angeles, CA 90068

(213) 675–1776

mklausner@klausnerlaw.us

ILYA SHAPIRO

MANHATTAN INSTITUTE

52 Vanderbilt Avenue

New York, NY 10017

(212) 599-7000

ishapiro@

manhattan-institute.org

Counsel for Amici Curiae

December 19, 2022