Association Des Eleveurs v. Rob Bonta

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ASSOCIATION DES ÉLEVEURS DE Nos. 20-55882
CANARDS ET D’OIES DU QUÉBEC, a 20-55944
Canadian nonprofit corporation;
HVFG, LLC, a New York limited D.C. No.
liability company; SEAN CHANEY, an 2:12-cv-05735-
individual, SVW-RZ
Plaintiffs-Appellees/
Cross-Appellants,
OPINION
v.

ROB BONTA, * in his official capacity
as Attorney General of California,
Defendant-Appellant/
Cross-Appellee.

Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding

Argued and Submitted October 18, 2021
Pasadena, California

Filed May 6, 2022

*
Rob Bonta has been substituted for his predecessor, Xavier
Becerra, as California Attorney General under Fed. R. App. P. 43(c)(2).
2 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

Before: Andrew J. Kleinfeld, Ryan D. Nelson, and
Lawrence VanDyke, Circuit Judges.

Opinion by Judge R. Nelson;
Partial Concurrence and Partial Dissent by Judge VanDyke

SUMMARY **

Civil Rights

The panel affirmed the district court’s dismissal of
plaintiffs’ preemption and dormant Commerce Clause
claims and its summary judgment in favor of plaintiffs on a
declaratory judgment claim in an action brought by various
foie gras sellers challenging California’s ban on the in-state
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 panel held that the sales ban was neither preempted
nor unconstitutional and that certain out-of-state sales were
permitted by California law.

The panel assumed without deciding that California’s
sales ban prohibits all foie gras sales in California. The panel
then rejected plaintiffs’ impossibility preemption challenge
asserting that the sales ban was preempted because it was
impossible to comply with both California law and the
federal Poultry Products Inspection Act (“PPIA”), 21 U.S.C.

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 3

§ 451. The panel held that even assuming guidance from the
United States Department of Agriculture requires foie gras
to be produced by force feeding, the sellers could still force
feed birds to make their products. They just could not sell
those products in California. The sales ban was neither a
command to market non-force-fed products as foie gras nor
to call force-fed products something different.

The panel held that the district court did not abuse its
discretion by denying plaintiffs leave to amend to add a new
express ingredient preemption claim alleging that the sales
ban operates as an “ingredient requirement” by prohibiting
foie gras as an ingredient in other poultry products. The
panel held that this court already rejected a critical premise
of that claim in Ass’n des Éleveurs de Canards et d’Oies du
Québec v. Becerra, 870 F.3d 1140, 1145–53 (9th Cir. 2017)
(“Canards II”), which was binding.

Rejecting plaintiffs’ dormant Commerce Clause claim,
the panel held that California’s sales ban prohibits only in-
state sales of foie gras, so it was not impermissibly
extraterritorial even if it influenced out-of-state producers’
conduct. The panel further rejected plaintiffs’ claim that the
sales ban unduly burdened interstate commerce, determining
that the sales ban was neither discriminatory nor was
inherently unduly burdensome.

The panel next considered California Attorney General’s
cross-appeal from the declaratory judgment order which
construed the sales ban to allow online, phone and fax sales
to California buyers when title passes outside the state. The
panel held that plaintiffs had standing to assert the claim; that
the district court properly permitted out-of-state sales; and
the district court did not err by rejecting the Attorney
General’s view that a sale occurs when a consumer takes
4 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

possession of a product. The panel agreed with a California
Court of Appeal’s conclusion that the California Uniform
Commercial Code provides a “reasonable” definition of
“sale” for purposes of the sales ban.

Concurring in part and dissenting in part, Judge
VanDyke agreed with the majority that the district court
properly interpreted California Health & Safety Code
§ 25982 to permit sales from out-of-state vendors and that
there was no standing issue preventing declaratory
judgment. He therefore joined those sections of the majority
opinion. But Judge VanDyke could not join the majority in
rejecting plaintiffs’ impossibility preemption claim and
upholding the district court’s denial of plaintiffs’ motion to
add an express preemption claim. Judge VanDyke wrote
that ultimately, the PPIA and § 25982 require foie gras to be
produced through mutually exclusive and irreconcilable
methods. When this conflict arises, the constitutional
controversy is not solved simply by saying the regulated
entity should stop selling. Rather, the Constitution demands
that the state law yield to federal law, and that is what was
required here. Judge VanDyke further wrote that this
Court’s decision in Canards II explicitly depended on
multiple assumptions about facts or issues not proven in the
record at that time—including whether foie gras could be
produced without force-feeding—and plaintiffs had now
presented undeniable evidence showing those assumptions
were mistaken.
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 5

COUNSEL

Peter H. Chang (argued), Deputy Attorney General; Mark R.
Beckington, Supervising Deputy Attorney General; Thomas
S. Patterson, Senior Assistant Attorney General; Rob Bonta,
Attorney General; Office of the Attorney General, San
Francisco, California; for Defendant-Appellant/Cross-
Appellee.

Michael Tenenbaum (argued), Office of Michael
Tenenbaum, Santa Monica, California, for Plaintiffs-
Appellees/Cross-Appellants.

OPINION

R. NELSON, Circuit Judge:

California prohibits the in-state 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. After nine years of litigation and in
their third set of appeals before this Court, the parties ask us
to decide whether California’s sales ban is preempted by the
Poultry Products Inspection Act (“PPIA”) or violates the
dormant Commerce Clause. If the ban is not preempted or
unconstitutional, they ask us to clarify whether it permits
certain internet, phone, and fax sales by out-of-state sellers.
We hold that the sales ban is neither preempted nor
unconstitutional and that the specified transactions are out-
of-state sales permitted by California law.

I

In 2004, California passed a law targeting the practice of
force feeding ducks or geese to produce foie gras. The law
6 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

worked through two provisions. The first prohibited force
feeding a bird “for the purpose of enlarging the bird’s liver
beyond normal size.” Cal. Health & Safety Code § 25981.
The second banned the in-state sale of products that are “the
result of” that practice. Id. § 25982. The law provided a
seven-and-a-half-year grace period for producers to
transition away from force feeding before it went into effect.
Id. § 25984.

At the end of the grace period, various foie gras sellers
sued to enjoin enforcement of the sales ban provision. Since
then, we have considered their arguments that the sales ban
violates the Due Process Clause or is preempted by federal
law under express, field, or obstacle preemption theories.
See Ass’n des Eleveurs de Canards et d’Oies du Quebec v.
Harris, 729 F.3d 937, 946–47 (9th Cir. 2013) (“Canards I”);
Ass’n des Éleveurs de Canards et d’Oies du Québec v.
Becerra, 870 F.3d 1140, 1145–53 (9th Cir. 2017)
(“Canards II”) (rejecting prior express and implied
preemption arguments following summary judgment).
Following those decisions, the sellers returned to district
court to add an impossibility preemption claim, a claim
under the dormant Commerce Clause, and a claim for
declaratory relief (clarifying that out-of-state sellers could
sell foie gras to California buyers over the internet, phone,
or fax). After further development of the record, they also
sought to add an express ingredient preemption claim.

The district court denied leave to add the new express
ingredient preemption claim and dismissed the impossibility
preemption and dormant Commerce Clause claims. Ass’n
des Eleveurs de Canards et d’Oies du Quebec v. Harris, No.
2:12-CV-05735-SVW-RZ, 2020 WL 595440, at *6 (C.D.
Cal. Jan. 14, 2020). But it granted summary judgment to the
sellers on their declaratory judgment claim, construing the
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 7

sales ban to allow online, phone, and fax sales to California
buyers when title passes outside the state. Ass’n des
Eleveurs de Canards et d’Oies du Quebec v. Harris, No.
2:12-CV-05735-SVW-RZ, 2020 WL 5049182, at *5 (C.D.
Cal. July 14, 2020).

Both sides object to the district court’s latest decisions.
California’s Attorney General appeals the declaratory
judgment order, challenging the sellers’ standing and
arguing that the specified transactions are prohibited. For
their part, the sellers cross-appeal the dismissal of their
preemption and dormant Commerce Clause claims. They
argue that it is impossible to comply with both California
law and the PPIA and that the sales ban regulates
extraterritorial conduct and unduly burdens interstate
commerce. They also contend that they should have been
allowed to add their express ingredient preemption claim.

II

We review de novo the district court’s order granting a
motion to dismiss for failure to state a claim, taking as true
all allegations of material fact and construing them in the
light most favorable to the nonmoving party. Cousins v.
Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). We review
the district court’s denial of leave to amend for abuse of
discretion. Brown v. Stored Value Cards, Inc., 953 F.3d 567,
573 (9th Cir. 2020).

We review de novo the district court’s order granting
summary judgment and “determine, viewing the evidence in
the light most favorable to the nonmoving party, whether
there are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law.”
Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 896 (9th
Cir. 2008) (citation omitted). The scope of a statute is a
8 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

question of law, which we also review de novo. Canards I,
729 F.3d at 945 (quoting In re Lieberman, 245 F.3d 1090,
1091 (9th Cir. 2001)).

“When interpreting state law, we are bound to follow the
decisions of the state’s highest court, and when the state
supreme court has not spoken on an issue, we must
determine what result the court would reach based on state
appellate court opinions, statutes and treatises.” Diaz v.
Kubler Corp., 785 F.3d 1326, 1329 (9th Cir. 2015)
(quotation marks and brackets omitted).

III

We first discuss the sellers’ cross-appeal, which raises
two preemption questions. The first is whether the sales ban
is preempted because it is impossible to comply with both
the PPIA and California law. The second is whether the
district court should have granted leave to amend because
the record now shows that the sales ban forbids the sale of
all foie gras and therefore imposes an “ingredient
requirement” that is “in addition to, or different than” those
under federal law and regulations. See 21 U.S.C. § 467e.
Both questions turn on the sellers’ assertion that it is
physically impossible to produce foie gras without force
feeding. We assume without deciding they are correct that
the sales ban prohibits all foie gras sales in California.

Preemption is rooted in the “fundamental principle of the
Constitution . . . that Congress has the power to preempt
state law.” Crosby v. Nat’l Foreign Trade Council, 530 U.S.
363, 372 (2000). It comes in three forms: express
preemption, field preemption, and conflict preemption.
Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1022 (9th Cir.
2013). Express preemption arises “when the text of a federal
statute explicitly manifests Congress’s intent to displace
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 9

state law.” Id. (citation omitted). Field and conflict
preemption, on the other hand, are types of implied
preemption. Field preemption prohibits state regulation of
“conduct in a field that Congress, acting within its proper
authority, has determined must be regulated by its exclusive
governance.” Id. (quoting Arizona v. United States, 567 U.S.
387, 399 (2012)). And even where Congress has not
occupied the field, conflict preemption arises when state law
conflicts with a federal statute. Id. at 1023 (quoting Crosby,
530 U.S. at 372). Impossibility preemption—a form of
conflict preemption—occurs when “it is impossible for a
private party to comply with both state and federal law.” Id.
(quoting Crosby, 530 U.S. at 372).

A

The sellers first argue that the sales ban is preempted
because it is impossible to comply with both California law
and the PPIA. In their view, they cannot comply with the
sales ban if federal law requires foie gras to be produced via
force feeding. They contend that the sales ban is a mandate
that foie gras not include force-fed products and therefore
their only option is to withdraw from the market. They then
point to the Supreme Court’s decision in Mutual
Pharmaceutical Co. v. Bartlett, 570 U.S. 472 (2013), to
argue that a state law is preempted if it requires producers to
stop selling their products.

The PPIA is a federal law that protects consumers by
ensuring that “poultry products . . . are wholesome, not
adulterated, and properly marked, labeled, and packaged.”
21 U.S.C. § 451. It authorizes the Secretary of Agriculture
to prescribe “definitions and standards of identity or
10 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

composition [f]or articles” within its scope. Id. § 457(b). 1
According to the sellers, those “definitions and standards”
require foie gras to be produced by force feeding because the
USDA defines foie gras as liver from poultry that has been
“specially fed and fattened.” They do not find that definition
in the text of the PPIA or in a regulation, adopted by notice
and comment, with the force of law. But at least one USDA
Policy Book, expressly adopted as guidance, defines foie
gras as “liver . . . obtained exclusively from specially fed and
fattened geese and ducks,” and other USDA documents
support the proposition that a “specially fed and fattened”
bird is one that has been force fed.

Unfortunately for the sellers, the definition of foie gras
is beside the point: it is not impossible to produce foie gras
in accordance with a USDA Policy Book just because force-
fed products cannot be sold in California. Even assuming
the USDA guidance requires force feeding, the sellers can
still force feed birds to make their products. They just cannot
sell those products in California. The sales ban is neither a
command to market non-force-fed products as foie gras nor
to call force-fed products something different.

1
USDA regulations authorize the Administrator of the Food Safety
and Inspection Service

to establish specifications or definitions and standards
of identity or composition, covering the principal
constituents of any poultry product with respect to
which a specified name of the product or other labeling
terminology may be used, whenever he determines
such action is necessary to prevent sale of the product
under false or misleading labeling.

9. C.F.R. § 381.155(a)(1).
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 11

The dissent contends that our reasoning draws the
“production versus sales” distinction that the Supreme Court
rejected in National Meat Ass’n v. Harris, 565 U.S. 452
(2012). To be sure, the Court has explained that states
cannot enact preempted regulations under the guise of a sales
ban. Id. at 463–64. But this case differs from National Meat
in at least two important ways. First, National Meat was an
express preemption case about the “operations” provision in
another federal statute. See id. at 459–60. Second, the sales
ban in this case works “at a remove” from the
slaughterhouses implicated in National Meat. See id. at 467.

National Meat considered a California statute that
(1) prohibited the sale of meat from “nonambulatory”
animals and (2) required the animals’ immediate
euthanization. Id. at 458–59. Federal law explicitly
preempted state regulation of slaughterhouse operations.
After examining “how the prohibition on sales operates
within [the California statute] as a whole,” the Court held
that “[t]he idea—and the inevitable effect—of the [sales ban]
[wa]s to make sure that slaughterhouses remove
nonambulatory pigs from the production process.” Id.
at 463–64. The California law was preempted not because
it was a sales ban but because it operated as a “command to
slaughterhouses to structure their operations.” Id.

Here, the sellers invoke only the “ingredient
requirements” provision of the PPIA’s preemption clause.
Of course, regulating how a food product is made could
impact its physical composition. But California law is silent
on what ingredients are needed to call a product foie gras.
The sellers have not argued that the sales ban affects
slaughterhouse operations like the sales ban challenged in
National Meat. In fact, the Supreme Court differentiated the
National Meat sales ban from laws like the one in this case.
12 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

Id. at 467. When a sales ban “works at a remove” from the
sites and activities directly governed by federal law and does
not “reach[] into the slaughterhouse’s facilities and affect[]
its daily activities,” it is not preempted on National Meat’s
reasoning. See id.

That leaves the sellers’ argument that the sales ban forces
them into the “stop-selling” solution rejected in another
Supreme Court case. See Bartlett, 570 U.S. at 488. In
Bartlett, the Supreme Court contemplated a New Hampshire
law that allowed design-defect claims against drug
manufacturers whose labels had been federally approved.
The New Hampshire cause of action effectively required
drug manufacturers to provide stronger safety warnings. Id.
at 475. Meanwhile, federal law prohibited generic drug
manufacturers from independently changing their labels. Id.
New Hampshire law thus imposed a duty on manufacturers
not to comply with federal law. Id. The Court rejected the
idea that such impossibility could be resolved by forcing a
seller to cease selling its products. Id. at 475–76.

Like their argument about National Meat, the sellers
stretch the Supreme Court’s reasoning too far. Bartlett does
not prohibit states from imposing regulations that might
require a manufacturer to withdraw from the market; it
merely rejects the “stop-selling” rationale as an escape hatch
when state and federal law impose conflicting obligations.
If, for example, federal law required foie gras to be from
force-fed birds but California law required foie gras not to
be from force-fed birds, producers could not comply with
both state and federal law. There is no such impossibility
here. Even if federal law requires foie gras to be the liver of
force-fed birds, California says only that it may not be sold
in the state.
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 13

In the dissent’s view, any state law that prevented a
manufacturer from selling its product would be preempted
under Bartlett. But Bartlett has never been read so broadly,
as evidenced by the bans upheld in this and at least two other
circuits. See Chinatown Neighborhood Ass’n v. Harris,
794 F.3d 1136, 1147 (9th Cir. 2015); Cavel Int’l, Inc. v.
Madigan, 500 F.3d 551, 554 (7th Cir. 2007); Empacadora
de Carnes de Fresnillo, S.A. de C.V. v. Curry, 476 F.3d 326,
334–35 (5th Cir. 2007). In fact, federal appellate courts
generally apply Bartlett only in the products liability
context. Confining Bartlett to those circumstances makes
sense—conflict preemption first requires conflicting
obligations under state and federal law. Virtually every
instance of conflict preemption could be resolved if a court
ordered the affected parties to simply cease their activities;
such an order would render impossibility preemption “all but
meaningless.” Bartlett, 570 U.S. at 488.

It is another thing entirely to forbid a state from
prohibiting sales just because a federal agency has issued
some guidance that addresses some aspect of a product. If
that were the case, several state sales bans would be
preempted just because federal law touches the product in
some way. See, e.g., Mich. Comp. Laws § 287.746 (sales
ban on battery cage eggs); Colo. Rev. Stat. § 35-21-
203(2)(a) (same); Mass. Gen. Laws ch. 148, § 39
(Massachusetts fireworks sales ban); 15 U.S.C. §§ 1261–
1263 (requiring hazardous substances sold in interstate
commerce and intended for household use to bear adequate
cautionary labels). Bartlett says that, when faced with
conflicting state tort law and federal law, the courts cannot
simply tell manufacturers to withdraw from the market. That
proposition does not erase states’ authority to prohibit the
sale of certain products within their borders.
14 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

B

The sellers’ contention that it is physically impossible to
produce foie gras without force feeding also underlies their
express preemption claim. They assert that the sales ban
operates as an “ingredient requirement” by prohibiting foie
gras as an ingredient in other poultry products (e.g.,
torchon).

The district court did not abuse its discretion when it
denied leave to amend. Even if the sellers’ arguments about
force feeding are correct, we have already rejected a critical
premise of their claim.

In Canards II, we concluded that the sales ban is not an
“ingredient requirement” preempted by the PPIA. 870 F.3d
at 1146–52. We held that force feeding was not an
“ingredient requirement” because ingredient requirements
refer to “the physical components of poultry products, not
the way the animals are raised.” Id. at 1147–48. We then
addressed the argument that the sales ban is functionally a
ban on all foie gras. Id. at 1149–50. We decided that it
“fail[ed] for two independent reasons.” Id. at 1149. The first
was that nothing in the record showed “that force-feeding is
required to produce foie gras.” Id. That reason no longer
applies because the record now includes evidence to that
effect. But Canards II also concluded that “even if section
25982 results in the total ban of foie gras regardless of its
production method, it would still not run afoul of the PPIA’s
preemption clause.” Id. at 1150.

The sellers urge us to reconsider because they have now
established the impossibility of non-force-fed foie gras—an
“essential factual premise” missing in the earlier appeal. But
these facts are immaterial because our decision in Canards II
did not depend on that premise and is binding. Even if the
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 15

sales ban prohibits all foie gras sales, it is not a preempted
“ingredient requirement” because federal law

does not mandate that particular types of
poultry be produced for people to eat . . . .
Nothing in the federal law or its
implementing regulations limits a state’s
ability to regulate the types of poultry that
may be sold for human consumption. If foie
gras is made, producers must, of course,
comply with the PPIA. But if a state bans a
poultry product like foie gras, there is nothing
for the PPIA to regulate.

Id. at 1150. The sellers do not advance any new argument
that could prevail given that holding. See Chappel v. Lab’y
Corp. of Am., 232 F.3d 719, 725–26 (9th Cir. 2000) (no
abuse of discretion when amendment would be futile).

The dissent calls our Canards II decision dicta that we
can revisit because the sellers have produced new evidence.
Dissent 36–40. But Canards II did not rely on the possibility
of producing foie gras without force feeding, so the new
evidence does not displace our prior decision. As for the
dissent’s characterization of that decision, Canards II’s
alternative holding cannot be dismissed as dicta. See Woods
v. Interstate Realty Co., 337 U.S. 535, 537 (1949) (“[W]here
a decision rests on two or more grounds, none can be
relegated to the category of obiter dictum.”). As a published
decision of this court, it controls as law of the circuit. See
Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012)
(en banc), aff’d sub nom. Arizona v. Inter Tribal Council of
16 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

Ariz., Inc., 570 U.S. 1 (2013). 2 The dissent believes “the
panel in Canards II engaged in flawed analysis,” Dissent 28,
and new evidence might present a “more difficult question”
than the one presented in the sellers’ prior petition for
certiorari, Dissent 38. Neither is a basis for us to ignore
binding precedent. Because another panel has already
answered the relevant question, that precedent must be
followed unless overruled by a body competent to do so.
Gonzalez, 677 F.3d at 389 n.4. 3

C

The sellers also cross-appeal the dismissal of their
dormant Commerce Clause claim. They argue that the sales
ban is unconstitutional because it (1) impermissibly
regulates out-of-state commerce and conduct and (2) unduly
burdens interstate commerce.

The dormant Commerce Clause stems from our
understanding that the Commerce Clause “implicitly
preempt[s] state laws that regulate commerce in a manner
that is disruptive to economic activities in the nation as a

2
Moreover, Canards II’s decision is law of the circuit, “regardless
of whether it was in some technical sense ‘necessary’ to our disposition
of the case.” See Barapind v. Enomoto, 400 F.3d 744, 751 (9th Cir.
2005) (en banc).
3
The dissent also argues that we should go beyond the legislative
text to assume California is trying to ban foie gras without explicitly
doing so. Our assumption about the sales ban’s effect does not assume
California’s purpose in passing the law. In any event, it is not our place
to stray from the text and guess at lawmakers’ intent. “We are governed
by laws, not by the intentions of legislators . . . . The law as it passed is
the will of the majority . . . and the only mode in which that will is spoken
is in the act itself.” Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia,
J., concurring) (internal quotation marks omitted).
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 17

whole.” Nat’l Pork Producers Council v. Ross, 6 F.4th
1021, 1026 (9th Cir. 2021), cert. granted, No. 21-438, 2022
WL 892100, at *1 (Mar. 28, 2022) (citing South Dakota v.
Wayfair, Inc., 138 S. Ct. 2080, 2090 (2018)). “[T]wo
primary principles . . . mark the boundaries of a State’s
authority.” Wayfair, 138 S. Ct. at 2090. “First, state
regulations may not discriminate against interstate
commerce; and second, States may not impose undue
burdens on interstate commerce.” Id. at 2091. A state law
may also violate the dormant Commerce Clause when it
(1) has extraterritorial effects, Nat’l Pork Producers
Council, 6 F.4th at 1026 (citing Wayfair, 138 S. Ct. at 2091),
or (2) regulates activities that are “inherently national or
require a uniform system of regulation,” id. at 1031 (quoting
Rosenblatt v. City of Santa Monica, 940 F.3d 439, 452 (9th
Cir. 2019)).

State laws that effectively burden only out-of-state
businesses (because there are no comparable in-state
businesses) are not necessarily discriminatory. See Exxon
Corp. v. Governor of Md., 437 U.S. 117, 119–26 (1978).
The sellers do not argue against the sales ban on that basis.
Instead, they argue that the sales ban is extraterritorial in its
“practical effect” and burdens interstate commerce in a way
that is “clearly excessive in relation to [its] putative local
benefits.” See Nat’l Ass’n of Optometrists & Opticians v.
Harris, 682 F.3d 1144, 1149 (9th Cir. 2012) (quoting Pike v.
Bruce Church, Inc., 397 U.S. 137, 142 (1970)). 4

4
The sellers also argue that California’s sales ban regulates
inherently national activities. To be sure, foie gras labeling is subject to
an inherently national or uniform system of regulation; to qualify as foie
gras, a product must satisfy USDA standards. But the sellers do not
identify federal regulation of foie gras sales. Ultimately, federal
18 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

i

The sellers argue that the sales ban is impermissibly
extraterritorial because force feeding is banned in California,
see Cal. Health & Safety Code § 25981, and therefore the
sales ban regulates only out-of-state conduct.

Although “[s]tates may not mandate compliance with
their preferred policies in wholly out-of-state transactions,
. . . they are free to regulate commerce and contracts within
their boundaries with the goal of influencing the out-of-state
choices of market participants.” Rocky Mountain Farmers
Union v. Corey, 730 F.3d 1070, 1103 (9th Cir. 2013). States
are thus free to regulate in-state sales without such regulation
being unconstitutional for its extraterritorial effect. See
Nat’l Pork Producers Council, 6 F.4th at 1029 (citing
Rosenblatt, 940 F.3d at 445). California’s sales ban
prohibits only in-state sales of foie gras, Canards I, 729 F.3d
at 949, so it is not impermissibly extraterritorial even if it
influences out-of-state producers’ conduct.

This conclusion is supported by our reasoning in Daniels
Sharpsmart, Inc. v. Smith, 889 F.3d 608 (9th Cir. 2018). In
that case, California attempted “to reach beyond [its] borders
. . . and control transactions that occur wholly outside of the
State after the material in question . . . ha[d] been removed
from the State.” Id. at 615. Although we enjoined
enforcement of the law in Daniels Sharpsmart, we clarified
that we were not concerned about “an attempt . . . to protect
California and its residents by applying [state law] to

regulation of one aspect of a good does not establish a uniform system
of regulation of all aspects of that good. See, e.g., Chinatown
Neighborhood, 794 F.3d at 1147 (shark fin sales ban did not interfere
with an activity that was inherently national or required a uniform system
of regulation, despite federal regulation of fisheries).
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 19

products that are brought into or are otherwise within the
borders of the State.” Id. Unlike the law in that case, the
sales ban does not affect transactions outside California. 5

ii

The sellers also contend that the sales ban unduly
burdens interstate commerce. The district court disagreed,
determining the sellers had shown no cognizable burden on
interstate commerce and recognizing California’s legitimate
local interest in “public health,” Canards, 2020 WL
5049182, at *2 n.1, and “[p]reventing animal cruelty,”
Canards, 2020 WL 595440, at *3.

State laws that “regulat[e] even-handedly to effectuate a
legitimate local public interest . . . will be upheld unless the
burden imposed on such commerce is clearly excessive in
relation to the putative local benefits.” Wayfair, 138 S. Ct.
at 2091 (quoting Pike, 397 U.S. at 142). Although we have
not identified every way a burden can be “clearly excessive,”
our precedent “preclude[s] any judicial assessment of the
benefits of a state law and the wisdom in adopting it unless
the state statute either discriminates in favor of in-state
commerce or imposes a significant burden on interstate

5
The distinction between in-state and out-of-state regulations is also
apparent in cases from other circuits. The Seventh Circuit enjoined
enforcement of an Indiana law that directly regulated operations in out-
of-state manufacturing plants. See Legato Vapors, LLC v. Cook,
847 F.3d 825 (7th Cir. 2017). And the Fourth Circuit invalidated a law
that directly controlled out-of-state transactions. See Ass’n for
Accessible Meds. v. Frosh, 887 F.3d 664 (4th Cir. 2018).
20 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

commerce.” Chinatown Neighborhood, 794 F.3d at 1146
(quotation marks, brackets, and ellipsis omitted). 6

The sales ban is not discriminatory, so the statute does
not impose an undue burden on that basis. Canards I,
729 F.3d at 948. And we have rejected the notion that sales
bans are inherently unduly burdensome. In Chinatown
Neighborhood, we held that a California law prohibiting in-
state shark fin sales did not unduly burden interstate
commerce when weighed against California’s interest in
“prevent[ing] animal cruelty.” 794 F.3d at 1147. We are not
alone; the Fifth and Seventh Circuits similarly upheld laws
banning the sale or importation of horse meat. Empacadora,
476 F.3d at 336–37; Cavel Int’l, 500 F.3d at 559.

In a final attempt to resurrect their dormant Commerce
Clause claim, the sellers assert that California can “convey[]
its distaste for foie gras” in less burdensome ways. But the
dormant Commerce Clause does not impose a “least
burdensome” requirement for state laws. See Canards I,
729 F.3d at 953 (quoting Nat’l Ass’n of Optometrists,
682 F.3d at 1157) (“‘[F]or us to invalidate a statute based on
the availability of less burdensome alternatives, the statute
would have to impose a significant burden on interstate
commerce,’ which is not the case here.”). We decline the
invitation to wade into murky policy waters.

D

For his part, the Attorney General contests two sellers’
standing and argues that the sales ban prohibits out-of-state

6
A state’s interest in “prevent[ing] animal cruelty” is a “legitimate
matter[] of local concern,” even when that cruelty takes place outside the
state. See Chinatown Neighborhood, 794 F.3d at 1147.
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 21

vendors’ sales to California buyers, even when order and
payment is processed outside the state and the only in-state
conduct is third-party delivery to (or transportation by) the
consumer. We reject both arguments.

i

The Attorney General challenges the standing of two
sellers—the Canadian Association (“Association”) and
restauranteur Sean “Hot” Chaney—because they have not
alleged that they sell (or plan to sell) foie gras to California
buyers. According to the Attorney General, Association
members do not directly sell foie gras to California buyers—
instead, they sell to out-of-state third-party sellers who then
sell to consumers. As for Chaney, the Attorney General
argues that the restauranteur does not sell foie gras from
outside California and Chaney’s purported interest in
purchasing foie gras is outside the scope of the declaratory
claim.

In cases involving multiple plaintiffs, “[a]t least one
plaintiff must have standing to seek each form of relief
requested in the complaint.” Town of Chester v. Laroe Ests.,
Inc., 137 S. Ct. 1645, 1647 (2017). To establish standing, a
plaintiff must show that it has “(1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Ctr. for Biological Diversity v.
Mattis, 868 F.3d 803, 816 (9th Cir. 2017) (quoting Spokeo,
Inc. v. Robins, 578 U.S. 330, 338 (2016), as revised
(May 24, 2016)).

The Attorney General’s challenge fails because the third
seller, whose standing he does not contest, has standing to
seek declaratory relief. Hudson Valley Foie Gras LLC
(“Hudson Valley”) is a limited liability corporation that
22 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

produces foie gras in New York and sells foie gras online.
Its website server is located outside California. Purchases
are processed by a third-party processor outside California
then received at Hudson Valley’s bank in New York. Orders
are fulfilled and products are delivered to third-party
shipping companies in New York facilities. Only then do
third-party shippers deliver Hudson Valley’s foie gras to
buyers. As a result of the sales ban, Hudson Valley has been
forced to stop accepting purchases from any buyer with a
California address. In fact, California District Attorneys
have threatened prosecution against Hudson Valley if they
sell to California consumers. Hudson Valley has therefore
alleged a sufficient injury in fact traceable to the Attorney
General’s enforcement of the sales ban and redressable by a
declaratory order clarifying the scope of California law. The
district court’s declaratory relief describes a group of sales
allowed under California law; it does not award damages or
afford other relief unique to any plaintiff.

The record also establishes standing for at least one of
the challenged sellers. As an organization, the Association
has standing to sue on behalf of its members when “(a) its
members would otherwise have standing to sue in their own
right; (b) the interests it seeks to protect are germane to the
organization’s purposes; and (c) neither the claim asserted
nor the relief requested requires the participation of
individual members in the lawsuit.” Ecological Rts. Found.
v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000)
(quoting Hunt v. Wash. State Apple Advert. Comm’n,
432 U.S. 333, 343 (1977)). The Association’s interest in
protecting its members’ foie gras sales is germane to its
purpose and no claim asserted or relief requested requires
member participation. Because Palmex, a member of the
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 23

Association, has alleged that it sells foie gras in the United
States, the Association has standing. 7

ii

The Attorney General also makes several arguments
about the scope of the sales ban. He contends that the district
court should not have used the definition provided in the
California Uniform Commercial Code (UCC) to permit sales
where:

[1] The Seller is located outside of
California[;]

[2] The foie gras being purchased is not
present within California at the time of sale[;]

[3] The transaction is processed outside of
California (via phone, fax, email, website, or
otherwise)[;]

[4] Payment is received and processed
outside of California[;] and

[5] The foie g[r]as is given to the purchaser
or a third-party delivery service outside of
California, and “[t]he shipping company [or
purchaser] thereafter transports the product to
the recipient designated by the purchaser,”
even if the recipient is in California.

7
Given that two sellers have standing, we need not consider
Chaney’s.
24 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

Canards, 2020 WL 5049182, at *5. In the Attorney
General’s view, the sales ban prohibits sales to California
consumers regardless of seller location. But because the ban
prohibits certain products from being “sold in California,”
the question is not where a seller is located but where a sale
occurs.

The California Supreme Court has not yet decided what
constitutes a sale under the sales ban, so we must predict how
it would answer the question. When interpreting state law,
California courts look “to the plain meaning of the statutory
language, then to its legislative history and finally to the
reasonableness of a proposed construction.” Riverview Fire
Prot. Dist. v. Workers’ Comp. Appeals Bd., 28 Cal. Rptr. 2d
601, 605 (1994).

In a different case involving this sales ban, the California
Court of Appeal looked to the UCC to define “sale.” Animal
Legal Def. Fund v. LT Napa Partners LLC, 184 Cal. Rptr.
3d 759, 771, 773 (2015) (citing Cal. Com. Code § 2106 (sale
occurs where title passes)); see also Cal. Com. Code
§ 2401(2). It explained that the UCC provided “a reasonable
general definition” for the term, Animal Legal Def. Fund,
184 Cal. Rptr. 3d at 771 (citing Merriam-Webster’s
Collegiate Dictionary 1028 (10th ed. 2001)), and noted that
another California law also defined “sale” as a transaction
“in which title . . . is passed,” id. at 772.

The Attorney General contends that this definition does
not apply because the UCC cannot “impair or repeal any
statute regulating sales to consumers, farmers or other
specified classes of buyers.” Cal. Com. Code § 2102. But
the sales ban does not define “sale,” and the UCC definition
cannot “impair or repeal” language that does not exist.
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 25

In the Attorney General’s view, other parts of the Health
and Safety Code suggest a sale occurs when a consumer
takes possession of the product. He first points to
California’s Shelled Egg Laws, which ban the in-state sale
of shelled eggs from hens confined in a manner that violates
specified animal care standards. Cal. Health & Safety Code
§ 25996. We have recognized that California’s Shelled Egg
Laws apply to “all eggs sold in California”; the Attorney
General contends that this language proves that out-of-state
sellers are not excluded from the sales ban. Missouri ex rel.
Koster v. Harris, 847 F.3d 646, 650 (9th Cir. 2017). To be
sure, both the sales ban and the Shelled Egg Laws apply to
all sales in California. But this point confuses the issue: the
district court’s order does not exempt out-of-state sellers
from California’s sales ban. Canards, 2020 WL 5049182,
at *5. Instead, it identifies out-of-state transactions that are
not prohibited by California law. Id.

The Attorney General next argues that the district court
erred by comparing the sales ban to other sections of
California’s Health and Safety Code. In particular, he argues
that the district court improperly used those sections to infer
that California did not reject the UCC definition.

After noting that the UCC does not override a provision
of the sales ban, the district court recognized that California
has defined sales in other sections of the Health and Safety
Code. Canards, 2020 WL 5049182, at *3–4 (discussing Cal.
Health & Safety Code § 25991(o)). To be sure, the expressio
unius canon does not require us to reject definitions provided
in parallel statutes just because they are absent from the sales
ban. But neither does it require us to use those definitions.
The sales ban does not define sales and, absent language to
the contrary, we follow the California Court of Appeal, see
26 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

Animal Legal Def. Fund, 184 Cal. Rptr. 3d at 773, and look
to the reasonable definition provided by the UCC.

The Attorney General also contends that the district
court’s focus on payment processing imposes limitations not
found in the sales ban’s text or legislative history. In
particular, he argues that “processing” does not determine
the place of a sale and that, in the internet age, any sales ban
permitting sales “processed” outside the state could be easily
evaded. It is true that the sales ban does not mention
“processing” of payments and transactions; it prohibits sales
in California, regardless of seller location, payment
processing, consumption, or possession. But the district
court’s language about “processing” merely limits its
declaratory judgment to the facts presented and describes a
category of transactions that occur outside California. It
does not add conditions to what is prohibited by California
law. And although the Attorney General correctly notes that
the consummation of a sale provides “a sufficient nexus . . .
to be treated as a local transaction taxable by th[e] State,”
that language discusses limitations on state and local
taxation, not what constitutes a “sale” under state law. See
Wayfair, 138 S. Ct. at 2092 (quoting Okla. Tax Comm’n v.
Jefferson Lines, Inc., 514 U.S. 175, 184 (1995)).

The Attorney General finally argues that the declaratory
judgment contradicts the legislature’s intent in enacting the
sales ban (i.e., to “discourage the consumption of products
produced by force feeding birds and prevent complicity in a
practice . . . deemed cruel to animals,” Canards I, 729 F.3d
at 952), so any reasonable interpretation of the sales ban
must prohibit direct sales to California buyers. But this
argument is contradicted by the statutory text; there is no
indication that the legislature intended to further its goal by
banning consumption and possession of foie gras.
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 27

Policymakers’ statements about force feeding and foie gras
point to the legislature’s general intent to prevent complicity
in animal cruelty or California’s position that a ban on force-
fed products does not amount to a ban of foie gras. The sales
ban presumably reflects the legislature’s balancing of those
goals with consumer costs. In any event, we agree with the
California Court of Appeal’s conclusion that the UCC
provides a “reasonable” definition of “sale” for purposes of
the sales ban. Animal Legal Def. Fund, 184 Cal. Rptr. 3d
at 771.

IV

In conclusion, California’s sales ban is neither
preempted nor impermissible under the dormant Commerce
Clause. The sellers have alleged standing to assert their
declaratory judgment claim and the district court’s order
properly permits out-of-state sales.

AFFIRMED.

VANDYKE, Circuit Judge, concurring in part and
dissenting in part.

I agree with the majority that the district court properly
interpreted California Health & Safety Code § 25982 to
permit sales from out-of-state vendors and that there is no
standing issue preventing declaratory judgment, and
therefore join those sections of the majority opinion. But I
cannot join the majority in rejecting Plaintiffs’ impossibility
28 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

preemption claim and upholding the district court’s denial of
Plaintiffs’ motion to add an express preemption claim. 1

California has prohibited the sale of any bird liver if that
bird was force-fed, and the only way to make foie gras that
complies with federal requirements is through force-feeding.
This forces Plaintiffs into an impossible situation, and one in
which the only solution is to stop selling any foie gras in
California. Although the majority deems this solution
sufficient, the Supreme Court has held that market
participants cannot be forced to “stop selling” when it is
impossible to comply with conflicting state and federal
requirements, and the majority’s attempt to free itself from
this clear command is unavailing.

The majority also rejects Plaintiffs’ argument that
§ 25982 operates as an impermissible “ingredient
requirement” that conflicts with federal requirements
governing how to produce foie gras. The majority does so
by relying on this court’s previous ruling in an earlier
iteration of this litigation. See Ass’n des Éleveurs de
Canards et d’Oies du Québec v. Becerra, 870 F.3d 1140,
1146 (9th Cir. 2017) (Canards II). But the Canards II
decision explicitly depended on multiple assumptions about
facts or issues not proven in the record at that time—
including whether foie gras could be produced without
force-feeding—and Plaintiffs have now presented
undeniable evidence showing those assumptions were
mistaken. Relying on those assumptions, the panel in
Canards II engaged in flawed analysis to deny Plaintiffs’
claim by assuming that the process by which the birds are
fed has no effect on the physical composition of the end

1
Because I would hold that § 25982 is preempted by federal law, I
would not reach Plaintiffs’ dormant Commerce Clause challenge.
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 29

product. That is simply not true on our record, as Plaintiffs
have offered an abundance of evidence to prove that force-
fed bird livers are chemically and physically different than
non-force-fed bird livers in numerous respects. All that
notwithstanding, the majority still chooses to bind itself to
Canards II. Because that is not required by our caselaw and
ignores essential developments in the litigation of this
matter, I respectfully dissent.

I. Impossibility Preemption

The preemption doctrine is a natural outworking of our
constitutional structure. As the Supremacy Clause makes
clear, “the Laws of the United States . . . shall be the supreme
Law of the Land . . . any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.” U.S. Const.,
art. VI, cl. 2. Therefore, “[w]here state and federal law
directly conflict, state law must give way.” PLIVA, Inc. v.
Mensing, 564 U.S. 604, 617 (2011) (internal quotation marks
and citation omitted). Relevant for our purposes, “state and
federal law conflict where it is ‘impossible for a private party
to comply with both state and federal requirements.’” Id.
at 618 (quoting Freightliner Corp. v. Myrick, 514 U.S. 280,
287 (1995)).

Plaintiffs argue that it is impossible to sell foie gras in
California in a way that is consistent with both the Federal
Poultry Products Inspection Act (PPIA) and § 25982. The
PPIA was enacted to ensure quality and uniformity among
poultry products, and authorizes the Secretary of Agriculture
to set forth “definitions and standards” of articles governed
by the PPIA. See 21 U.S.C. § 457(b). The USDA has
defined foie gras as “liver . . . obtained exclusively from
specially fed and fattened geese and ducks,” see UNITED
STATES DEPARTMENT OF AGRICULTURE, FOOD STANDARDS
AND LABELING POLICY BOOK (2005), and—as the majority
30 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

acknowledges—has elsewhere explained that “specially fed
and fattened” means force-fed. It is important to recognize
that the federal government’s definition of foie gras is
inherently process-based. Compliance with the federal
definition of foie gras inevitably turns on how the foie gras
was made. If, for example, a company invented some
method of modifying a bird liver posthumously so that it
otherwise mirrored foie gras in every respect, that company
would still not be able to label it as foie gras according to the
federal requirements, because that bird was not “specially
fed and fattened” as required by the federal definition of
“foie gras.”

This process-based definition is neither unique nor
surprising. The most commonplace example of this is
probably the USDA’s guidelines around organic foods. As
the USDA explains, “[t]he organic standards are process-
based, meaning they establish the rules for an entire system
of farming that follows a product from its beginnings on the
farm all the way to retail.” UNITED STATES DEPARTMENT OF
AGRICULTURE, ORGANIC 101: WHAT ORGANIC FARMING
(AND PROCESSING) DOESN’T ALLOW (2017) (emphasis
added). As with foie gras, one cannot designate something
as organic by examining only the end product, but rather
must also know the process by which that product was
produced. 2

Once foie gras’ federal definition is properly understood,
the tension with California’s § 25982 becomes clear.
Section 25982 is also a statute regulating the process of how
foie gras must be made if it is to be sold in the state. Again,

2
To be clear, the process by which foie gras is created does also in
fact affect the end product—something that may or may not be true to
the same extent with all organic foods. See infra Section II.
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 31

§ 25982 forbids the sale of any product in California “if it is
the result of force feeding a bird for the purpose of enlarging
the bird’s liver beyond normal size.” There is little dispute
that this statute regulates process. See Canards II, 870 F.3d
at 1144 (“California’s legislature intended to ban not foie
gras itself, but rather the practice of producing foie gras by
force-feeding.”) (emphasis added); see also 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.”). Looking at the statutory text, I see no
reason to dispute this understanding of the statute as
articulated by the Canards II panel or California’s then-
governor. California’s statute is therefore best understood
as limiting acceptable foie gras to non-force-fed foie gras.

In short, the federal government has defined foie gras to
mean specially fed and fattened (i.e., force-fed) goose and
duck liver, while California has banned the sale of any foie
gras produced by force-feeding the bird. This means there
is no universe in which Plaintiffs can comply with both the
PPIA and § 25982, because there is no universe in which
Plaintiffs could follow California’s requirement for
acceptable foie gras while also meeting the federal definition
of what foie gras is. And therefore, “under the Supremacy
Clause, from which our pre-emption doctrine is derived, any
state law . . . which interferes with or is contrary to federal
law, must yield.” Gade v. Nat’l Solid Wastes Mgmt. Ass’n,
505 U.S. 88, 108 (1992) (internal quotation marks and
citation omitted).

Perhaps what is most puzzling about the majority
opinion is that my colleagues seem to agree with much of
32 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

what I just explained. They write: “If, for example, federal
law required foie gras to be from force-fed birds but
California law required foie gras not to be from force-fed
birds, producers could not comply with both state and federal
law.” Unfortunately, “[w]hat the [majority] does not see is
that that is this case . . . .” Mut. Pharm. Co. v. Bartlett,
570 U.S. 472, 490 (2013).

As explained above, both premises of the majority’s not
so hypothetical hypothetical are true. The federal definition
does in fact require “foie gras to be from force-fed birds,”
and the California statute does in fact require “foie gras not
to be from force-fed birds.” But despite these two realities,
the majority still claims “[t]here is no such impossibility
here. Even if federal law requires foie gras to be the liver of
force-fed birds, California says only that it may not be sold
in the state.” The majority seemingly relies on the idea that
there is no preemption issue because the PPIA regulates the
process by which foie gras is made, while § 25982 is a sales
ban.

But this line of reasoning has already been rejected by
the Supreme Court. In National Meat Association v. Harris,
the Supreme Court held that a California law banning the
sale of nonambulatory pigs (pigs that cannot walk) was
preempted by the Federal Meat Inspection Act (FMIA),
which regulated the process by which slaughterhouses
handle and slaughter animals for consumption. 565 U.S.
452, 455 (2012). The Supreme Court determined that the
sales ban was preempted because it “imposes additional or
different requirements on swine slaughterhouses” by forcing
them to treat nonambulatory pigs differently than under
federal law. Id. at 460. The same is true here, since § 25982
demands foie gras producers treat the birds differently than
what the PPIA requires.
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 33

The majority distinguishes this case from National Meat
by arguing in part that the “sales ban in this case works ‘at a
remove’ from the slaughterhouses implicated in National
Meat.” But this argument has it backwards; § 25982 is in
fact more intrusive on the foie gras sellers than the
slaughterhouses in National Meat. The Supreme Court in
National Meat examined the statute in question, which
facially banned only the sale of nonambulatory pigs, and
concluded that “[t]he idea—and the inevitable effect—of the
provision is to make sure that slaughterhouses remove
nonambulatory pigs from the production process . . . .” Id.
at 464. The Supreme Court invalidated California’s statute
because the “sales ban” actually functioned “as a command
to slaughterhouses to structure their operations in the exact
way the [statute] mandates.” Id. There is no such subterfuge
here. California’s § 25982 overtly regulates the process by
which saleable foie gras can be produced. But the majority
today rewards California for doing explicitly what the
Supreme Court faulted it for doing implicitly: imposing state
requirements on a process regulated by the federal law.

The majority also argues that National Meat is
inapplicable because the statute here does not directly
govern any aspects of the process regulated by federal law
and “does not ‘reach[] into the slaughterhouse’s facilities
and affect[] its daily activities’” because it bans only the sale
of non-force-feed birds. But this argument is no different
than the one the Supreme Court considered and rejected in
National Meat. Defenders of California’s law in National
Meat argued that there was no preemption because the “ban
on sales does not regulate a slaughterhouse’s ‘operations’
because it kicks in only after they have ended: Once meat
from a slaughtered pig has passed a post-mortem inspection,
the Act ‘is not concerned with whether or how it is ever
actually sold.’” Id. at 463 (citation omitted). The Supreme
34 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

Court disagreed, reasoning that to accept this argument
would mean that “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.” Id.
at 464. The Supreme Court also referenced another
preemption case to conclude “it ‘would make no sense’ to
allow state regulations to escape preemption because they
addressed the purchase, rather than manufacture, of a
federally regulated product.” Id. (citing Engine Mfrs. Ass’n.
v. South Coast Air Quality Mgmt. Dist., 541 U.S. 246, 255
(2004)).

National Meat makes clear that a state cannot sidestep a
preemption issue simply by banning the sale of a certain
good produced a certain way instead of directly banning the
process itself. National Meat’s practical rule would seem to
apply a fortiori where the process by which the product is
made is precisely how federal law defines the product that
the state is attempting to partially ban. This is exactly what
California has done with § 25982, and therefore § 25982
should be treated the same as California’s statute in National
Meat.

Building off this logic, the majority leaves the sellers
with one unenviable path forward: “[t]hey just cannot sell
those products in California.” The problem with this
supposed solution is that it too has already been flatly
rejected by the Supreme Court. In Mutual Pharmaceutical
Company v. Bartlett, the Supreme Court examined a New
Hampshire law that effectively required Mutual
Pharmaceutical to offer a stronger warning label for a certain
drug. 570 U.S. 472, 475 (2013). Mutual argued that the New
Hampshire law was preempted by the Federal Food, Drug,
and Cosmetic Act, which prohibited Mutual from changing
its drug label. Id. Given the impossibility of complying with
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 35

both the federal and state law, the First Circuit offered the
same solution the majority offers today: “Mutual should
simply have pulled [the drug] from the market in order to
comply with both state and federal law . . . .” Id. The
Supreme Court emphatically rejected this idea. “We reject
this ‘stop-selling’ rationale as incompatible with our pre-
emption jurisprudence.” Id. at 488. Again, “if the option of
ceasing to act defeated a claim of impossibility,
impossibility pre-emption would be ‘all but meaningless.’”
Id. (citation omitted). And finally:

The incoherence of the stop-selling theory
becomes plain when viewed through the lens
of our previous cases. In every instance in
which the Court has found impossibility pre-
emption, the ‘direct conflict’ between
federal-and state-law duties could easily have
been avoided if the regulated actor had
simply ceased acting.

Id.

The majority seeks to avoid this head-on collision with
Bartlett by asserting that Bartlett “merely rejects the ‘stop-
selling’ rationale as an escape hatch when state and federal
law impose conflicting obligations.” But even this narrow
reading of Bartlett squarely governs the case before us, since
the stop-selling rationale is in fact being used as the escape
hatch to avoid the conflict between state and federal
requirements governing the production of foie gras. And as
our caselaw makes clear, the preemption doctrine is
implicated whenever a state and federal law conflict. Id.
at 490; see also Maryland v. Louisiana, 451 U.S. 725, 728
(1981) (“It is basic to [the Supremacy Clause] that all
36 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

conflicting state provisions be without effect.”) (emphasis
added). 3

Ultimately, the PPIA and § 25982 require foie gras to be
produced through mutually exclusive and irreconcilable
methods. When this conflict arises, the constitutional
controversy is not solved simply by saying the regulated
entity should stop selling. Rather, the Constitution demands
that the state law yield to federal law, and that is what is
required here.

II. Express Preemption

The harm in rejecting Plaintiffs’ impossibility
preemption claim is compounded by the fact that the
majority also upholds the district court’s denial of Plaintiffs’
motion for leave to add a new express preemption claim.
The PPIA’s preemption clause ensures that “[m]arking,
labeling, packaging, or ingredient requirements . . . in
addition to, or different than, those made under this chapter
may not be imposed by any State . . . .” 21 U.S.C. § 467e.
In Canards II, Plaintiffs argued that California’s ban on the
sale of force-fed birds operated as an “ingredient
requirement” and was thus preempted by the PPIA. The
Canards II panel disagreed, holding that “‘ingredient
requirements’ pertain to the physical components that

3
The majority also argues that under my reading of Bartlett, “any
state law that prevented a manufacturer from selling its product would
be preempted under Bartlett.” My position is in fact far narrower than
the majority alleges. My argument is not that the states cannot ban the
sale of a product if that product is regulated in any way imaginable by
the federal government; rather, my argument is that the state cannot
create an irresolvable conflict with federal law over how a product
should be produced—a proposition firmly supported by National Meat
and Bartlett.
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 37

comprise a poultry product, not animal husbandry or feeding
practices.” Canards II, 870 F.3d at 1148.

Both the district court and the majority today base their
decisions largely on the fact that, because Canards II
“already rejected a critical premise of their claim,” plaintiffs
are bound by that decision under the “law of the case”
doctrine. “[U]nder the ‘law of the case’ doctrine, one panel
of an appellate court will not as a general rule reconsider
questions which another panel has decided on a prior appeal
in the same case.” Merritt v. Mackey, 932 F.2d 1317, 1320
(9th Cir. 1991) (citation omitted). However, “[t]he doctrine
is discretionary, not mandatory.” Id. And our circuit has
explained that one situation where the law of the case
doctrine should not bind a later panel is when “substantially
different evidence was adduced at a subsequent trial.”
Hegler v. Borg, 50 F.3d 1472, 1475 (9th Cir. 1995). An
abundance of new evidence has been produced in this case
since Canards II, and therefore this panel should not
handcuff itself to a prior, and now outdated, ruling.

Most importantly, the Canards II panel found that
“nothing in the record before us shows that force-feeding is
required to produce foie gras.” Canards II, 870 F.3d at
1149. Unlike in Canards II, Plaintiffs in the record before
us now have demonstrated that force-feeding is required to
produce foie gras. This is critical because, as the United
States Solicitor General observed in his brief before the
Supreme Court recommending that the Supreme Court not
grant review in Canards II, “[i]f in fact Section 25982 did
operate to make unavailable in the State any poultry products
containing foie gras—or perhaps a particular type of foie
gras that was a materially distinct substance, physically or
38 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

chemically—it would present a more difficult question.”4
Brief for the United States as Amicus Curiae at 14–15,
Canards II. But the Solicitor General went on to recommend
that because the Plaintiffs in Canards II have not
“established that liver for foie gras cannot be produced by a
method other than force-feeding the geese or ducks,” there
was no need to “resolve this difficult question” at that point.
Id. at 15–16.

Ignoring that this “more difficult question” is now
presented to this panel for the first time in this case, the
majority still finds the holding in Canards II binding because
the Canards II panel stated that “even if section 25982
results in the total ban of foie gras regardless of its
production method, it would still not run afoul of the PPIA’s
preemption clause.” Canards II, 870 F.3d at 1150 (emphasis
added). But California’s elected officials repeatedly
emphasized what is also crystal clear from the text of
§ 25982—that it does not ban foie gras “regardless of its
production method.” Section 25982 is concerned only with
the “production method” for foie gras, so Canards II’s
passing statement about a hypothetical situation present in

4
The Canards II panel’s conclusions appear to have been
inextricably tied to its now-inapt factual understanding that foie gras
could be produced without force-feeding. During oral argument, many
of the questions centered around whether force-feeding was the
exclusive means of producing foie gras. One of our colleagues asked
Plaintiffs’ counsel, “for us to agree with you, we have to agree that the
only way that this product can be served in California is through force-
feeding, there is no other way to do it?” Plaintiffs’ counsel responded,
“I think if you agree with that, then it’s automatically preempted and
there’s not even a question.” Oral Arg. at 32:00–32:11, Canards II,
https://www.youtube.com/watch?v=WJerm_vEbE0&t=1785s.
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 39

neither Canards II nor our case cannot somehow control our
analysis here. 5

The record in our case is unambiguous: California
purports to ban only some foie gras, and that ban is entirely
tied to the production method for that foie gras. As
mentioned earlier, numerous California officials stressed
this point at every stage of § 25982’s deliberation and
ratification. Even the Senator who authored the bill stated
as much, declaring that § 25982 “has nothing to do . . . with
banning foie gras,” but rather only preventing the “inhumane
force feeding [of] ducks and geese.” Id. at 1144. California
itself reinforces this interpretation in its briefing before the
court, repeatedly asserting that § 25982 is not a total foie
gras ban.

The problem is not that California has directly enacted a
“total ban of foie gras”—no one argues that it has. The
problem is that California has attempted to ban only one
particular production method for foie gras (force-feeding),
but that one production method is also precisely how federal
law defines the ingredient foie gras, and there is no other way
to make foie gras. That express preemption claim was never
squarely addressed in Canards II, because Canards II
expressly assumed that force feeding was not the only way

5
The majority argues that my position requires the panel to “ignore
binding precedent,” but this misses the point. First, the majority
transforms the law of the case doctrine from a discretionary doctrine to
a categorical command in a way foreign to our own caselaw. See, e.g.,
Merritt, 932 F.2d at 1320. But more importantly, my argument is not
that we should disregard Canard II as non-binding dicta; my argument
(as explained below) is that Canards II’s dicta is simply not applicable
here.
40 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

to produce foie gras. Plaintiffs should not be barred from
having it addressed in the first instance now.

The majority similarly errs by relying on the Canards II
dicta about whether a state can enact a “total ban” on some
food product. That dicta may very well be correct; perhaps
California could directly ban all foie gras if it so chose. See
Canards II, 870 F.3d at 1150 (citing Empacadora de Carnes
de Fresnillo, S.A. de C.V. v. Curry, 476 F.3d 326 (5th Cir.
2007) (upholding a total ban on horse meat); Cavel Int’l, Inc.
v. Madigan, 500 F.3d 551 (7th Cir. 2007) (same)). But it is
also completely irrelevant to this case. As explained, the
record is unmistakable that California has not attempted to
enact a total ban on foie gras like some states did with horse
meat. And the fact that California might have the authority
to directly ban all foie gras is factually and legally distinct
from the question that Plaintiffs seek to present on remand
in this case: whether California can attempt to ban some foie
gras in a way that directly conflicts with the federal
definition of what foie gras is, particularly when that is also
the only way to make foie gras.

The majority seems to assume that if § 25982 would be
constitutional if it was an outright foie gras ban, then it must
also be constitutional if it is anything less stringent. But in
constitutional law, the greater power often does not include
the lesser power. See, e.g., 44 Liquormart, Inc. v. Rhode
Island, 517 U.S. 484, 513 (1996) (“[W]e think it equally
clear that [Rhode Island’s] power to ban the sale of liquor
entirely does not include a power to censor all [liquor]
advertisements . . . . As the entire Court apparently now
agrees, the [greater includes the lesser] statements . . . on
which Rhode Island relies are no longer persuasive.”). Here,
the fact that California might be able to directly ban foie gras
altogether does not control whether it can enact an attempted
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 41

partial ban that runs headlong into the federal definition of
how foie gras is defined. 6

6
The majority’s rejection of Plaintiffs’ preemption claims also has
the unfortunate side effect of undermining political accountability. As
California argued in its opening brief, the “Legislature enacted Section
25982 in part to discourage the consumption of force-fed foie gras.” But
the statute was obviously meant to discourage only the consumption of
foie gras produced a certain way; it was not a ban on foie gras altogether.
There could be numerous reasons why California’s elected officials
opted not to enact a total prohibition, including political compromise,
lack of support for a direct total ban, countervailing considerations, etc.
But the majority today ignores California’s limited goal—clear from the
face of § 25982 and reinforced by California’s political branches at every
turn. It instead analyzes the statute as if its conflict with federal law, and
the effect of that conflict, was built directly into the state statute itself, so
that the state statute itself is a total ban. In doing so, the majority
disregards a key tenet of statutory interpretation: that “that the law’s
‘purpose,’ properly understood, embodies not merely a statute’s
substantive ends (its ‘ulterior purposes’), but also [the legislature’s]
specific choices about the means to carry those ends into effect (its
‘implemental purposes’).” John F. Manning, The New Purposivism,
2011 SUP. CT. REV. 113, 115 (2011) (footnote omitted). And in
morphing this statute into something the legislature did not enact, the
majority encourages future short-circuiting of the democratic process by
the political branches (whether intentional or not). California’s elected
officials may be able to pass an outright foie gras ban if they desired, but
they should be required to actually enact such a law and be held
politically accountable for that decision. “When [the legislature] itself
regulates, the responsibility for the benefits and burdens of the regulation
is apparent. Voters who like or dislike the effects of the regulation know
who to credit or blame.” Murphy v. Nat’l Collegiate Athletic Ass’n, 138
S. Ct. 1461, 1477 (2018). California’s voters have been denied the
opportunity to do that here. The voters were repeatedly told § 25982 was
not a total ban on foie gras and have presumably made their political
decisions accordingly. But the majority’s conclusion today blesses an
outcome that the political officials may not have had the political will to
enact, and in doing so, denies the people of California the ability to
“know who to credit or blame” for the fact that they not only cannot buy
foie gras from force-fed ducks, but they cannot buy any foie gras at all.
42 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

Put simply, the panel in Canards II reached its
conclusion by relying on two assumptions: (1) there were
other methods for producing foie gras besides force-feeding;
and (2) even if § 25982 was hypothetically a complete ban
unrelated to production methods, it would still be
constitutional. Neither of those assumption apply to the case
before this panel, which presents a fact-pattern that the
Canards II panel clearly did not consider—where force-
feeding is the only method of production and § 25982 is not
a complete ban on foie gras. Because Canards II did not
address this situation, it is yet another reason why the rule of
the case doctrine does not apply. See Hegler, 50 F.3d at 1475
(“Although the doctrine applies to a court’s explicit
decisions as well as those issues decided by necessary
implication, it clearly does not extend to issues an appellate
court did not address.”) (citation omitted).

Once it is recognized that Canards II’s express
preemption ruling was based on a factual record very
different than the one before us, we must examine if § 25982
does in fact impermissibly add an ingredient requirement

Is that because of California’s attempted partial ban on foie gras, or
because of the federal definition of foie gras? California voters should
not have to speculate who is to blame for their deprived palate in this
circumstance, because the direct conflict between the state and federal
laws about how foie gras is produced should mean that the state law is
preempted.

The majority’s takeaway from this argument is that I am advocating
we “should go beyond the legislative text to assume California is trying
to ban foie gras without explicitly doing so.” Again, the majority has it
exactly backwards. The argument throughout my dissent is that the
legislative text was clear: California enacted a law regulating the process
by which foie gras was made, not an outright sales ban. A simple reading
of that statute, not any divination of the lawmaker’s intent, is the only
foundation needed to sustain my view.
 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA 43

that conflicts with federal law. On the record before it, the
Canards II panel argued the “ordinary meaning” of
“ingredient” and the “statutory scheme as a whole” proves
that the “‘ingredient requirements’ pertain to the physical
components that comprise a poultry product, not animal
husbandry or feeding practices.” 870 F.3d at 1148. But the
expanded record in this case now shows that framing to be a
false dichotomy. As Plaintiffs have now established, feeding
practices do in fact affect the physical components of foie
gras. The liver of a force-fed duck will be up to ten times
larger, lighter in color, have a higher ratio of saturated fatty
acids, as well as have a different texture, taste, and smell than
the liver of a non-force-fed duck. One doesn’t need to be a
chemist to see the obvious differences between the two:

(non-force-fed liver) (force-fed liver)

So while Canards II may (or may not) have been correct
to say that there is no physical difference “between regular
chicken and cage-free chicken,” id. at 1149, the same
certainly cannot be said about “regular” duck liver and force-
fed duck liver.
44 ASS’N DES ÉLEVEURS DE CANARDS V. BONTA

Given all the new evidence presented to this panel for
this case, in addition to the outdated assumptions and
erroneous reasoning offered in Canards II, I see no reason to
bind ourselves to its conclusion on express preemption. I
would therefore reverse the district court and allow Plaintiffs
to add their express preemption claim.