Food, Animals, and the Constitution: California Bans on Pork, Foie Gras, Shark Fins, and Eggs

Abstract

Animal welfare policies focused on food production cook up significant constitutional controversies. Since 2008, California has tried to ban the sale of certain edible items made from animals. Eaters and farmers challenge these policies, citing economic discrimination and preemption by federal statutes, in violation of the Constitution’s Dormant Commerce and Supremacy Clauses, respectively. This food-and-animal jurisprudence includes pork products in National Meat Association v. Harris (2012); foie gras in Association des Éleveurs de Canards et D’Oies du Québec v. Harris (2013) and Association des Éleveurs de Canards et D’Oies du Québec v. Becerra (2017); shark fins in Chinatown Neighborhood Association v. Harris (2015); and eggs in Missouri v. Harris (2016). These cases regard California’s animal welfare policies to ban: pork products from “downer” swine, who are immobile; force-feeding ducks to make foie gras; shark fins used in soup in Chinese cuisine; and eggs from hens housed in battery cages. These policies raise legal questions beyond what is inhumane, forcing courts to decide if Californian food choices create barriers to interstate commerce or conflict with federal food statutes on meat, poultry, and marine conservation. This Article argues that state-level food policies improving animal treatment will face judicial inquiry, balancing preventing animal cruelty with federal concerns for economic discrimination, uniformity, and costs passed on to eaters and food producers. This Article identifies how California policies exemplify larger conflicts placing states and animal advocates against eaters and farmers. Constitutional law will serve as an important ingredient to settle these stewing conflicts.

Keywords: constitution, food, agriculture, animal welfare, dormant commerce, commerce clause, preemption, foie gras, shark fin, eggs, downer, battery cage, King Amendment, California Egg Case

JEL Classification: Q1, Q18, Q22, Q28, Q38, Q57, R, K23, K32, K42, K1, D4, D61, D63, H23, H11, H75, Z13, Z18