September 27, 2022

Volume XII, Number 270

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September 26, 2022

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No Rehearing Granted on California’s In-State Foie Gras Sales Ban

  • As we reported earlier this year, plaintiffs who oppose a 2004 California law, which prohibits the force-feeding of birds to enlarge their livers and bans the in-state sale of foie gras products, indicated that they would request a rehearing en banc after a May 6, 2022 opinion by a split three-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld a 2020 district court ruling that California’s in-state sales ban of foie gras from force feeding is not preempted by federal law under the doctrine of impossibility preemption and does not violate the dormant Commerce Clause of the U.S. Constitution.

  • In an order filed July 1, 2022, the plaintiffs’ petition for panel rehearing and rehearing en banc was denied.  The same judge who accepted the plaintiff foie gras producer and restauranter’s impossibility arguments in the first appeal voted to grant a rehearing.  A majority of the appellate panel, however, voted to deny the plaintiff appellants’ petition for panel rehearing and no judge on the full court requested a vote for en banc consideration.

  • Barring a favorable ruling for the plaintiffs from the U.S. Supreme Court, in the event a writ of certiorari is requested and granted, it is now settled that individual California buyers can legally purchase foie gras from force fed birds only from out-of-state companies by internet, phone or fax.

Nicholas Prust, Natalie Rainer, and Frederick Stearns also contributed to this article.

© 2022 Keller and Heckman LLPNational Law Review, Volume XII, Number 192
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About this Author

Lisa P. Alsobrook Attorney Keller Heckman DC Office
Associate

Lisa Alsobrook practices in the area of food and drug law. She advises domestic and foreign clients on regulatory requirements for foods, dietary supplements, cosmetics, and food and drug packaging in jurisdictions around the world. Her main focus is regulatory and compliance matters of the U.S. Food and Drug Administration (FDA) and the U.S. Department of Agriculture relating to human food, food packaging material, animal feed, food additives and ingredients, and dietary supplements.

Prior to attending law school, Lisa earned a master’s degree in Food Science. She worked as a...

202-434-4237
Melvin S. Drozen, FDA, regulatory lawyer, Keller Heckman, law firm
Partner

Melvin S. Drozen joined Keller and Heckman in 1987.

Mr. Drozen advises clients on a broad spectrum of FDA, FTC, USDA and EPA (pesticides) regulatory matters, ranging from premarket approval requirements for food additives, dietary supplement ingredients, drugs, and medical devices to advertising and labeling provisions applicable to all of these products. Prior to joining Keller and Heckman, he was an Assistant District Attorney in Brooklyn, N.Y., and then an attorney in the General Counsel's Office of the Food and Drug Administration for seven...

202-434-4222
Jill M Mahoney Associate Attorney Keller Heckman
Associate

Jill Mahoney advises clients on regulatory requirements for food, animal feed, food additives, dietary supplements, and cosmetics. She counsels clients on labeling and advertising compliance and claims substantiation issues, including nutrition labeling, ingredient declarations, nutrient content claims, structure function claims, and Country of Origin labeling. She assists food, animal feed, and dietary supplement manufacturers in preparing self-determined GRAS positions, GRAS Notifications for Food and Drug Administration (FDA) submissions, New Dietary Ingredient Notification submissions...

202-434-4184
Richard Mann Partner Keller Heckman DC
Partner

Richard (Rick) Mann represents his clients in business and trade association disputes relating to food advertising, promotional and labeling claims, food safety and compliance issues, and general business and corporate law matters.

Rick works extensively with clients in the development of compliant advertising, promotional, and labeling claims and campaigns, and the development of appropriate support for such claims. His regulatory experience allows him to represent his clients in proceedings at the Food and Drug Administration (FDA), the Federal Trade Commission (FTC), the National...

202-434-4229
Paula S. Pastuskovas San Francisco Food and Drug Attorney Keller and Heckman
Associate

Paula Pastuskovas counsels domestic and international clients on regulatory and compliance matters in food and drug law. She assists clients in obtaining regulatory clearances for food additives and food-contact materials from the U.S. Food and Drug Administration (FDA), Health Canada, and other comparable international agencies. She advises clients on food labeling, ingredient, and substantiation issues. 

As a resident of the firm’s San Francisco office, Paula also advises companies on compliance with California’s state and local laws. This...

415-948-2830
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