United States Court of Appeals
Fifth Circuit
UNITED STATES COURT OF APPEALS FILED
for the Fifth Circuit May 4, 2006
Charles R. Fulbruge III
Clerk
No. 05-30098
PIAZZA’S SEAFOOD WORLD, LLC,
Plaintiff-Counter Defendant-Appellee,
VERSUS
BOB ODOM,
Individually and as Commissioner of the Louisiana Department of
Agriculture and Forestry,
Defendant-Counter Claimant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
Before HIGGINBOTHAM, DeMOSS, and OWEN, Circuit Judges.
DeMOSS, Circuit Judge:
This case requires us to decide the constitutionality of two
Louisiana statutes, one that regulates the labeling of catfish,
LA REV. STAT. ANN. § 3:4617(C) (the “Catfish Statute”), and another
that regulates the use of the word “Cajun” on food products, id.
at § 3:4617(D), (E) (the “Cajun Statute”). Appellee Piazza’s
Seafood World, LLC (“Piazza”) is a Louisiana company that imports
seafood and distributes it under the trade names “Cajun Boy” and
“Cajun Delight.” It sued the Commissioner of the Louisiana
Department of Agriculture and Forestry, Mr. Bob Odom, to enjoin
the Commissioner from enforcing the Catfish and Cajun Statutes
against the company. The district court granted summary judgment
in Piazza’s favor with respect to the statutes and enjoined the
Commissioner from enforcing either statute against Piazza,
concluding (1) that the Catfish Statute was preempted by 21
U.S.C. § 343(t) and (2) that the Cajun Statute, as applied to
Piazza, violated the First Amendment. The district court also
denied the Commissioner’s motion for new trial regarding the
Catfish Statute, which the court treated as a motion to
reconsider, reiterating that the Catfish Statute was preempted
and finding in the alternative that it violated the dormant
Foreign Commerce Clause. For the reasons stated below, we affirm.
I. BACKGROUND AND PROCEDURAL HISTORY
This case represents the next chapter in an ongoing saga
regarding the labeling of catfish. In May 2002, Congress passed
legislation limiting the class of fish sold in interstate
commerce to which the label “catfish” could be applied. See Farm
Security and Rural Investment Act of 2002, Pub. L. No. 107-171,
§ 10806(a), 116 Stat. 134, 526-27 (codified at 21 U.S.C. §§ 321d,
343(t)). This legislation was prompted by increased sales of
Vietnamese Pangasius bocourti in the United States as “basa
2
catfish.” See Kerrilee E. Kobbeman, Legislative Note, Hook, Line
and Sinker: How Congress Swallowed the Domestic Catfish
Industry’s Narrow Definition of this Ubiquitous Bottomfeeder, 57
ARK. L. REV. 407, 411-18 (2004); see also 148 CONG. REC. S3989
(daily ed. May 8, 2002) (statement of Sen. Hutchinson) (“With
this provision, we were trying to end the deceptive and
economically destructive practice of mislabeling Vietnamese
basa . . . .”); 147 CONG. REC. H6267-68 (daily ed. Oct. 4, 2001)
(statements of Reps. Barry, Pickering, and Shows) (describing the
purposes behind the legislation). The American catfish industry
was heavily impacted by the sale of these fish under the catfish
name: sales of domestic catfish dropped significantly and
domestic catfish farmers were forced to lower their prices.
Kobbeman, supra, at 411-12; see also 147 CONG. REC. H6267-68
(statements of Reps. Barry, Pickering, and Shows) (detailing the
impact of foreign catfish on the American market). The new
federal catfish labeling law, codified at 21 U.S.C. §§ 321d and
343(t), provided that the term “catfish” could only be considered
“a common or usual name (or part thereof) for fish classified
within the family Ictaluridae”; “only labeling or advertising for
fish classified within that family” could use the term “catfish”;
and a food would be deemed misbranded if it purported to be or
was represented as catfish, unless it was fish classified within
3
the family Ictaluridae. 21 U.S.C. §§ 321d, 343(t). After this
legislation was passed, Vietnamese Pangasius bocourti, members of
the family Pangasiidae, could no longer be labeled catfish; only
fish from the family Ictaluridae, native to America, could bear
the lucrative catfish label.
Around the same time, Louisiana discovered that American
Ictaluridae were being farmed in China and sold in the United
States as catfish, and it passed legislation limiting further the
class of fish to which the catfish label could be applied. 2002
La. Sess. Law Serv. 1st Ex. Sess. Act 125 (West). Specifically,
Louisiana stated that only Ictaluridae grown in the United States
could be labeled “catfish.” LA. REV. STAT. ANN. § 3:4617(C)
(2003).1 This lawsuit arose out of application of that law, as
well as a Louisiana law limiting the use of the word “Cajun” on
food products, to an American importer and distributor of Chinese
Ictaluridae.
Piazza is a Louisiana Limited Liability Company that has
been selling seafood wholesale in Louisiana for more than fifty
years; thirty years ago, it began marketing some of its products
1
The legislation also defined fish from the family
Anarhichadidae grown in the United States as catfish; however, that
portion of the statute is not at issue in this case because
according to the record, Appellee Piazza only sells Ictaluridae.
4
under the trade names “Cajun Boy” and “Cajun Delight,”2 and today
it sells all of its products under those names. Although Piazza
originally sold mostly Louisiana seafood, ninety-nine percent of
the food products it sells currently are imported from overseas.
Its customers are largely institutional buyers that resell
Piazza’s products to wholesalers and restaurants, but Piazza
sells about one percent of its products to grocery stores that
resell its products directly to the public. One of the products
Piazza sells is Cajun Boy-brand catfish from the family
Ictaluridae that is imported from China.3 The catfish and the
“Cajun Boy” and “Cajun Delight” trade names are what is at issue
in this case.
In March 2004, Commissioner Odom ordered several of Piazza’s
customers not to “sell, offer for sale, apply, move or remove”
any of Piazza’s products because the reference to “catfish” on
Piazza’s Chinese catfish violated Louisiana’s Catfish Statute4;
2
Both trade names are registered with the Louisiana
Secretary of State.
3
The Chinese catfish are descendants of American catfish
imported to China for farming purposes, and the parties agree
that they are biologically identical to American catfish.
4
The Catfish Statute read,
No one shall misrepresent the name, or type of any
fruit, vegetable, grain, meat, or fish, including
catfish, sold, or offered or exposed for sale, to any
actual or prospective consumer. “Catfish” shall mean
only those species within the family
Ictaluridae . . . and grown in the United States of
5
as a result of this action, 30,000 cases of Piazza’s catfish were
seized.5 Piazza brought suit, seeking an injunction against
Commissioner Odom to prevent him from enforcing the Catfish
Statute against the company. Piazza argued that the Catfish
Statute was preempted by 21 U.S.C. § 343(t) and unconstitutional
under the Commerce and Equal Protection Clauses. The district
court eventually granted partial summary judgment in Piazza’s
favor as to the Catfish Statute, finding that the statute was
preempted by 21 U.S.C. § 343(t) because of an actual conflict
between the state and federal laws.6 The court did not address
Piazza’s alternative constitutional claims regarding the Catfish
Statute at that time, although it did mention that it saw
potential Commerce Clause problems with the statute.
While the original suit was pending, the Louisiana
legislature passed House Bill 891, which repealed the
America.
LA. REV. STAT. ANN. § 3:4617(C) (2003).
5
These cases were later released for sale after Piazza
agreed to stamp the word “Chinese” above the word “catfish” on
each case. Each case was already marked “Product of China,” and
the parties do not dispute that Piazza has always marked its
foreign products with their country of origin.
6
Section 343(t) states,
A food shall be deemed to be misbranded--
If it purports to be or is represented as catfish,
unless it is fish classified within the family
Ictaluridae.
21 U.S.C. § 343(t).
6
“grandfather clause” in Louisiana’s Cajun Statute that had
previously protected the use of the word “Cajun” in a product
name if that name was a trademark or trade name legally
registered with the state of Louisiana as of May 15, 2003.7
Without the protection of the grandfather clause, all of Piazza’s
inventory violated the Cajun Statute. Piazza accordingly amended
its complaint in the district court, seeking a second injunction
against Commissioner Odom, this one to prevent the Commissioner
7
The Cajun Statute, prior to amendment, read,
D. No person shall advertise, sell, offer or expose for
sale, or distribute food or food products as “Cajun”,
“Louisiana Creole”, or any derivative thereof unless
the food or food product would qualify for the ten
percent preference for products produced, processed, or
manufactured in Louisiana under R.S. 38:2251 and R.S.
39:1595. Food brought into and processed in Louisiana
shall not be considered as food or food products made
in Louisiana, for purposes of this Section, unless the
food has been substantially transformed by processing
in Louisiana.
E. No person shall advertise, sell, offer or expose for
sale, or distribute food or food products that do not
qualify under this Section for labeling as “Cajun”,
“Louisiana Creole”, or any derivative thereof in any
packaging that would lead a reasonable person to
believe that the food or food product qualifies as
“Cajun” or “Louisiana Creole” food or food products, as
defined in this Section.
F. The provisions of Subsections D and E of this
Section shall not infringe upon rights acquired
pursuant to any trademark or trade name legally
registered with the state of Louisiana as of May 15,
2003.
LA. REV. STAT. ANN. § 3:4617(D)-(F) (Supp. 2004). House Bill 891
repealed subsection (F).
7
from enforcing the Cajun Statute against Piazza.8 Piazza argued
that the Cajun Statute was unconstitutional under the First
Amendment and the Commerce, Equal Protection, Due Process, and
Takings Clauses. Around the same time, Commissioner Odom filed a
motion for new trial as to the Catfish Statute. The district
court again found in Piazza’s favor, granting partial summary
judgment in Piazza’s favor as to the Cajun Statute--finding that
the statute, as applied to Piazza, violated the First Amendment--
and denying the Commissioner’s motion for new trial as to the
Catfish Statute--reiterating that the Catfish Statute was
preempted and finding in the alternative that it violated the
dormant Commerce Clause by discriminating against foreign
commerce.9 The court never addressed Piazza’s alternative
constitutional claims regarding the Cajun Statute.
8
Piazza originally amended its complaint to challenge
the constitutionality of the repeal of Louisiana Revised Statutes
§ 3:4617(F), but later amended its complaint again to add a
challenge to the constitutionality of the Cajun Statute itself,
Louisiana Revised Statutes § 3:4617(D), (E).
9
The district court correctly characterized and analyzed
the Commissioner’s Rule 59(a) motion for new trial as a Rule
59(e) motion to reconsider entry of summary judgment. See Patin
v. Allied Signal, Inc., 77 F.3d 782, 785 n.1 (5th Cir. 1996); see
also Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665,
669-70 (5th Cir. 1986) (“‘[A]ny motion that draws into question
the correctness of a judgment is functionally a motion under
Civil Rule 59(e), whatever its label.’” (quoting 9 MOORE’S FEDERAL
PRACTICE ¶ 204.12[1], at 4-67 (1985))). For simplicity’s sake, the
Commissioner’s motion for new trial is referred to as a motion to
reconsider throughout the remainder of this opinion.
8
The Commissioner timely appealed the district court’s denial
of his motion to reconsider as to the Catfish Statute and its
partial summary judgment as to the Cajun Statute.10 He argues on
appeal (1) that the district court erred in holding that the
Catfish Statute is preempted by 21 U.S.C. § 343(t); (2) that the
district court erred in reaching its alternate conclusion that
the Catfish Statute violates the dormant Commerce Clause; and (3)
that the district court erred in holding that the Cajun Statute,
as applied to Piazza, violates the First Amendment.
II. The Catfish Statute
Generally, this Court reviews the denial of a motion to
reconsider for abuse of discretion. Fletcher v. Apfel, 210 F.3d
510, 512 (5th Cir. 2000). However, if a party appeals from the
denial of a Rule 59(e) motion that is solely a motion to
reconsider a judgment on its merits, de novo review is
appropriate. Id. Considering Commissioner Odom’s arguments on
appeal, it is apparent that he “intended to appeal the merits of
the underlying [summary] judgment,” id.; accordingly, we review
his claims regarding the Catfish Statute de novo.11
10
The notice of appeal effectively stayed the proceedings
in the district court, where a cross-claim under the Lanham Act,
which is not discussed here, is pending.
11
Neither party properly addresses the standard of review
this Court should apply with respect to the motion to reconsider.
The Commissioner frames his standard of review discussion as
though he were directly appealing the motion for summary
9
The district court held that the Catfish Statute violated
the dormant Commerce Clause because it was “a protectionist
measure that discriminate[d] against foreign commerce in favor of
local interests.” We agree.
The Commerce Clause states that “Congress shall have
Power . . . To regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes.” U.S. CONST. art.
I, § 8, cl. 3. Although the Commerce Clause speaks only of
Congress’s power, it has long been understood that there is a
dormant or negative aspect of the Commerce Clause that limits the
power of the states to regulate commerce. See Camps
Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 571-72
(1997); Or. Waste Sys., Inc. v. Dep’t of Envtl. Quality, 511 U.S.
93, 98-99 (1994); Dennis v. Higgins, 498 U.S. 439, 447 (1991);
New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273-74 (1988);
see also Nat’l Solid Waste Mgmt. Ass’n v. Pine Belt Reg’l Solid
Waste, 389 F.3d 491, 497 (5th Cir. 2004) (acknowledging the
Supreme Court’s dormant Commerce Clause jurisprudence). This
negative aspect of the Commerce Clause applies both to the
Foreign Commerce Clause (“Commerce with foreign Nations”), see,
e.g., Wardair Canada, Inc. v. Fla. Dep’t of Revenue, 477 U.S. 1,
judgment, which he is not. And Piazza does not discuss the
appropriate standard of review at all. However, we, not the
parties, determine the appropriate standard of review.
10
7-8 (1986), and to the Interstate Commerce Clause
(“Commerce . . . among the several States”), see, e.g., Camps
Newfound/Owatonna, Inc., 520 U.S. at 571-72, although the scope
of Congress’s power to regulate foreign commerce, and accordingly
the limit on the power of the states in that area, is greater,
see, e.g., Kraft Gen. Foods, Inc. v. Iowa Dep’t of Revenue and
Fin., 505 U.S. 71, 79 (1992) (noting that “the constitutional
prohibition against state taxation of foreign commerce is broader
than the protection afforded to interstate commerce, in part
because matters of concern to the entire Nation are implicated”
(citation omitted)); Wardair Canada, Inc., 477 U.S. at 8 (“In the
unique context of foreign commerce, we have alluded to the
special need for federal uniformity: ‘In international relations
and with respect to foreign intercourse and trade the people of
the United States act through a single government with unified
and adequate national power.’” (internal quotation marks and
citation omitted)); Japan Line v. Los Angeles, 441 U.S. 434, 446
(1979) (stating that “a more extensive constitutional inquiry is
required” in Foreign Commerce Clause cases because a state
regulation may “impair federal uniformity in an area where
federal uniformity is essential”).
State regulations violate the dormant Commerce Clause by
discriminating against or unduly burdening foreign or interstate
11
commerce. See, e.g., Or. Waste Sys., Inc., 511 U.S. at 98
(Interstate Commerce Clause); Kraft Gen. Foods, Inc., 505 U.S. at
81 (Foreign Commerce Clause). Regulations that facially
discriminate are virtually per se invalid, Camps
Newfound/Owatonna, Inc., 520 U.S. at 575 (explaining that
discriminatory regulations are strictly scrutinized); Nat’l Solid
Waste Mgmt. Ass’n, 389 F.3d at 497 (same); see also Kraft Gen.
Foods, Inc., 505 U.S. at 81 (“Absent a compelling
justification, . . . a State may not advance its legitimate goals
by means that facially discriminate against foreign commerce.”),
whereas regulations that merely burden commerce are valid “unless
‘the burden imposed on such commerce is clearly excessive in
relation to the putative local benefits.’” Or. Waste Sys., Inc.,
511 U.S. at 99 (quoting Pike v. Bruce Church, Inc., 397 U.S. 137,
142 (1970)).
In the context of the Interstate Commerce Clause, if a state
regulation is found to be nondiscriminatory, the court examines
“the nature of the local interest and whether alternative means
could achieve that interest with less impact on interstate
commerce.” Nat’l Solid Waste Mgmt. Ass’n, 389 F.3d at 501. “‘If a
legitimate local purpose is found, then the question becomes one
of degree. And the extent of the burden that will be tolerated
will of course depend on the nature of the local interest
12
involved, and on whether it could be promoted as well with a
lesser impact on interstate activities.’” Id. (quoting Pike, 397
U.S. at 142). However, in the context of the Foreign Commerce
Clause, other considerations come into play: nondiscriminatory
state regulations affecting foreign commerce are invalid “if they
(1) create a substantial risk of conflicts with foreign
governments; or (2) undermine the ability of the federal
government to ‘speak with one voice’ in regulating commercial
affairs with foreign states.” New Orleans S.S. Ass’n v.
Plaquemines Port, Harbor & Terminal Dist., 874 F.2d 1018, 1022
(5th Cir. 1989) (quoting Japan Line, 441 U.S. at 446).
Commissioner Odom focuses his arguments on appeal on the
Interstate Commerce Clause. He argues that the Catfish Statute
does not discriminate against interstate commerce because it does
not meet any of the factors listed in Exxon Corp. v. Governor of
Maryland, 437 U.S. 117 (1978), namely, the Catfish Statute “does
not prohibit or limit the flow of goods into the state, creates
no barriers whatsoever against the importation of goods, does not
place added costs on out-of-state goods, and does not distinguish
between in-state and out-of-state companies in the wholesale or
retail market.” The Commissioner misses the point. The problem
with the Catfish Statute is not that it discriminates against
interstate commerce, but that it discriminates against foreign
13
commerce. And this discrimination appears on the face of the
statute: the Catfish Statute treats domestic catfish differently
from foreign catfish to the benefit of the former and the
detriment of the latter. See Or. Waste Sys., Inc., 511 U.S. at 99
(defining discrimination in the Commerce Clause context).
Therefore, the Commissioner’s citation to Exxon Corp. is
inapposite. Exxon Corp. involved a statute that did not facially
discriminate, see Exxon Corp., 437 U.S. at 125 (“Plainly, the
Maryland statute does not discriminate against interstate goods,
nor does it favor local producers and refiners.”); accordingly,
the Court was using the factors cited by Commissioner Odom to
determine whether the statute in question unduly burdened — or
had a discriminatory effect on — commerce, see id. at 125-26.
Those factors are irrelevant in a case involving facial
discrimination.12
12
The Commissioner cites other cases in his reply brief in
support of his argument that the Catfish Statute does not
discriminate against commerce. We are not persuaded by any. First,
the Commissioner is wrong that the differential treatment of
products, rather than entities, cannot qualify as discrimination.
See Bacchus Imps., Ltd. v. Dias, 468 U.S. 263, 269 n.8 (1984)
(“[D]iscrimination between in-state and out-of-state goods is as
offensive to the Commerce Clause as discrimination between in-state
and out-of-state taxpayers.”). Second, an absolute barrier to
commerce is not required for discrimination to exist. See, e.g.,
Or. Waste Sys., Inc., 511 U.S. at 96-100 & (finding patent
discrimination where the statute in question simply applied a
differential charge to out-of-state entities, and stating “the
degree of a differential burden or charge on interstate commerce
‘measures only the extent of the discrimination’ and ‘is of no
relevance to the determination whether a State has discriminated
14
Commissioner Odom also challenges the district court’s
decision by arguing that Congress somehow condoned Louisiana’s
legislation. We recognize that Congress may permit a state to
enact legislation that would otherwise violate the Commerce
Clause, but its intent to do so must be “expressly stated.” New
Orleans S.S. Ass’n, 874 F.2d at 1022 (citing S.-Cent. Timber
Dev., Inc. v. Wunnicke, 467 U.S. 82, 91-92 (1984)). “The fact
that the state policy [involved] appears to be consistent with
federal policy--or even that state policy furthers the goals we
might believe that Congress had in mind--is an insufficient
indicium of congressional intent. S.-Cent. Timber Dev., Inc., 467
U.S. at 92. There is no express statement in either of the
statutes cited by the Commissioner, § 343(t) or the Lanham Act,
regarding the power of the states to enact catfish labeling
legislation that discriminates against foreign commerce. See 21
U.S.C. § 343(t); Lanham Act, 15 U.S.C. § 1051 et seq. The
Commissioner relies on his interpretation of the purposes of
against interstate commerce’” (quoting Wyoming v. Oklahoma, 502
U.S. 437, 455 (1992)). Finally, a statute that facially
discriminates does not have to otherwise burden commerce in order
to be strictly scrutinized--the cases the Commissioner cites
requiring a burden in addition to discrimination did not involve
facial discrimination. See id. The overarching problem with
Commissioner Odom’s arguments is that he fails to recognize that
the Catfish Statute’s differential treatment of domestic catfish
and foreign catfish to the benefit of the former and the detriment
of the latter is, without more, facial discrimination subject to
strict scrutiny.
15
§ 343(t) and the Lanham Act--to prevent the labeling of foreign
fish as catfish and to prevent “initial interest confusion,”
respectively--to support his position that “federal law allows
the actions employed by Louisiana,” but even if we agreed with
his interpretation of those statutes, his reliance on their
purposes, rather than their express language, indicates that
Congress has made no express statement regarding state catfish
labeling laws that discriminate against commerce. A state statute
that violates the Commerce Clause cannot be saved by a showing
that it is consistent with the purposes behind federal law. S.-
Cent. Timber Dev., Inc., 467 U.S. at 92.
Because we find that the Catfish Statute discriminates on
its face against foreign commerce, we presume that it is invalid.
See Kraft Gen. Foods, Inc., 505 U.S. at 81. To overcome this
presumption, the Commissioner must demonstrate that the Catfish
Statute serves a legitimate local purpose that cannot be
adequately served by reasonable nondiscriminatory alternatives.
New Energy Co. of Ind., 486 U.S. at 278; see also Kraft Gen.
Foods, Inc., 505 U.S. at 81. This the Commissioner has not done:
Because he thinks the Catfish Statute does not discriminate, he
only comes forward with evidence that the statute’s burden is
minimal in relation to its local benefits. This evidence, even if
accepted as true, is not enough to satisfy the Commissioner’s
16
heightened burden under strict scrutiny review. See Camps
Newfound/Owatonna, Inc., 520 U.S. at 582 (stating that because
the appellant “made no effort to defend the statute under the per
se rule,” the Court would not address whether strict scrutiny was
satisfied). Absent a compelling justification, which the
Commissioner has not offered, the Catfish Statute is invalid.
Because we find that the Catfish Statute violates the dormant
Foreign Commerce Clause, we do not address whether it is
preempted.13
III. The Cajun Statute
This Court reviews grants of summary judgment de novo,
applying the same standard as the district court. Wheeler v. BL
Dev. Corp., 415 F.3d 399, 401 (5th Cir. 2005). Summary judgment
is appropriate if no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law. FED.
R. CIV. P. 56(C). The Court views the evidence in a light most
favorable to the non-movant. Wheeler, 415 F.3d at 401. The non-
movant must go beyond the pleadings and come forward with
specific facts indicating a genuine issue for trial to avoid
summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986). A genuine issue of material fact exists when the evidence
is such that a reasonable jury could return a verdict for the
13
We also do not address any of Piazza’s alternative
constitutional claims regarding the Catfish Statute.
17
non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Summary judgment is appropriate, however, if the non-
movant “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case.” Celotex,
477 U.S. at 322-23.
The Commissioner argues on appeal that Piazza’s First
Amendment rights were not violated by the Cajun Statute because
Piazza’s use of the word “Cajun” in its trade names is misleading
and deceptive. He argues alternatively that even if the use of
the word “Cajun” is not misleading or deceptive, Louisiana has
substantial governmental interests in regulating use of that word
that are directly advanced by the Cajun Statute, and the statute
is narrowly tailored to achieve those goals. Piazza counters that
the Cajun Statute, as applied to Piazza,14 violates all four
prongs of the relevant Central Hudson test and thus constitutes
an impermissible restriction on Piazza’s First Amendment right to
use the “Cajun Boy” and “Cajun Delight” trade names.
Central Hudson Gas v. Public Service Commission, 447 U.S.
557 (1980), supplies the test for determining whether the
government has permissibly regulated commercial speech:
In commercial speech cases . . . a four-part analysis
has developed. At the outset, we must determine whether
the expression is protected by the First Amendment. For
14
Piazza clarified at oral argument that on appeal it is
only challenging the statute as applied.
18
commercial speech to come within that provision, it at
least must concern lawful activity and not be
misleading. Next, we ask whether the asserted
governmental interest is substantial. If both inquiries
yield positive answers, we must determine whether the
regulation directly advances the governmental interest
asserted, and whether it is not more extensive than is
necessary to serve that interest.
Cent. Hudson, 447 U.S. at 566. The district court answered
Central Hudson’s first two inquiries in the affirmative, finding
(1) that Piazza’s use of the “Cajun Boy” and “Cajun Delight”
trade names was only potentially misleading, not actually or
inherently misleading, because Piazza largely sells its products
to wholesalers and it labels its products with their country of
origin and (2) that Louisiana’s interest in protecting
Louisianans from misleading and deceptive uses of trade names was
substantial. The district court then turned to whether the Cajun
Statute directly advanced Louisiana’s asserted interest in
protecting Louisianans and whether the statute was more extensive
than necessary to serve that interest. It answered this inquiry
in the affirmative, finding that the state’s interest in
protecting Louisianans from deception was not enhanced by
application of the state statute to Piazza because there was no
deception present to be prevented. The court also found that the
state statute was more extensive than necessary when applied to
Piazza because it contained no exception for sellers like Piazza
who disclose truthful information (country of origin) on their
19
food labels that eliminates the deceptive nature of the labeling.
The court emphasized that the Cajun Statute was not facially
invalid, only invalid as applied to Piazza.
Having carefully reviewed the record, the briefs, and the
oral argument of the parties, we affirm the district court’s
decision as to the Cajun Statute essentially for the reasons
stated by the district court.15
IV. Conclusion
Accordingly, we AFFIRM the district court’s decision to deny
Commissioner Odom’s motion for new trial as to the Catfish
Statute and its decision to grant Piazza’s motion for partial
summary judgment as to the Cajun Statute.
15
We do not address Piazza’s alternative constitutional
claims regarding the Cajun Statute.
20
HIGGINBOTHAM, Circuit Judge, concurring:
I concur for the reasons stated by the panel opinion
and the thoughtful opinions of the district court. I agree that
the Louisiana Statute discriminates against foreign commerce. As
was the district court, however, I am persuaded that the
preferable approach is to draw upon preemption doctrine. The
commerce power hardly lies dormant here. Congress has set down a
detailed regulatory scheme addressing the subject of misleading
descriptions of the family relationships of catfish and how this
kinship is to be described in their sale. The arguments in this
case supporting a finding of discrimination against foreign
commerce and the justifications for its heightened review rest
upon the dominance of federal power in matters of relations with
foreign countries not on maintenance of a national economy by the
quelling of sibling efforts to gain commercial advantage over
sister states.
21