In City of New York v Ball, 2024 NY Slip Op 24179 [Sup Ct, Albany County 2024], the Albany County Supreme Court upheld a determination of the Commissioner (“Commissioner”) of the Department of Agriculture and Markets (“Department”) that concluded the City of New York’s (“City”) local law banning food establishments from selling or serving foie gras and other force-fed products (“Foie Gras Ban”) unreasonably restricted and regulated farming operations in “upstate” New York.
This case concerned preemption and a conflict between State and local policies. The Court addressed the Commissioner’s/Department’s State agency power to effectively overrule local elected officials and the will of their electorate. At issue was whether an indirect, extraterritorial restriction or regulation falls within the purview of the farming protection framework, given that City’s Foie Gras Ban affected farming operations situated in Sullivan County – approximately 70 miles north.
A. The State’s Farming Protections
- Article 25-AA of the N.Y. Agriculture and Markets Law (“AML”) contains the relevant statutory authority. The Legislature recognized that many agricultural lands were, and are, in jeopardy of being lost to non-agricultural uses due to local land use regulations inhibiting farming and the expansion of non-agricultural development. To address this concern, the Legislature enacted a policy “to conserve and protect agricultural lands as valued natural and ecological resources” and provided a local mechanism “for the protection and enhancement of New York state’s agricultural land as a viable segment of the local and state economies and as an economic and environmental resource of major importance” (AML § 300).
A county legislature may establish one or more agricultural districts within its geographical boundaries and, when approved by the Commissioner, the land and farm operations within the agricultural district(s) are entitled to certain benefits and protections. There are 152 agricultural districts across 50 counties comprising approximately 25% of the State’s total land area; there are no agricultural districts within the City.
AML Section 305-a provides preemption protection by (i) requiring localities to exercise their powers “in such [a] manner as may realize the policy and goals [of AML Article 25-AA],” and (ii) prohibiting localities from unreasonably restricting or regulating farm operations[1] within agricultural districts, unless the public health or safety is threatened. A farm owner/operator within an agricultural district may apply to the Commissioner for a determination as to whether local land use regulations or laws unreasonably restrict or regulate its farm operations. The Commissioner may also bring an action to enforce Section 305-a’s protections. Essentially, if the Commissioner determines a local law unreasonably restricts or regulates farming operations, then the locality cannot enforce the law against those farming operations.
B. The City’s Foie Gras Ban
- The City adopted the Foie Gras Ban in November 2019. Foie gras is a specialty food product made from the liver of a duck or goose, where the liver is fattened by gavage (i.e. force-feeding). Foie gras producers force-feed ducks and geese, as young as 8-10 weeks old, by inserting a foot-long metal or plastic pipe down the esophagus, and forcing 2-4 pounds of grain and fat down the esophagus at least 2-3 times per day, to produce a liver 10 times normal size. Gavage often results in bruising, lesions, and perforated esophagi, and may cause asphyxia or suffocation if the food enters the trachea.
In support of enacting the Foie Gras Ban, the City provided evidence showing that an overwhelming majority of City residents opposed force-feeding and supported the Foie Gras Ban, some national retailers were unwilling to sell foie gras, other countries and California banned the sale of foie gras, and veterinarians and animal welfare advocates opined gavage is inherently inhumane.
C. AML Section 305-a Review
Two farms (“Farms”) situated within agricultural districts in Sullivan County applied to the Commissioner for a determination that the Foie Gras Ban unreasonably restricted or regulated their framing operations and claimed “it was the express intention of the City to restrict the Farms’ agricultural practices through the use of its power as the largest market for the Farms’ foie gras products.” Put another way, the Farms claimed that the Foie Gras Ban unreasonably restricted and regulated farming operations indirectly because the loss of City sales would devastate the Farms economically.
The Commissioner’s Initial Determination[2]
- In August 2020, the Commissioner issued an initial determination that the Foie Gras Ban appeared to violate the State’s agricultural policy and AML Article 25-AA, that “banning the sale or provision of certain force-fed poultry products violate[s] the policy and goals of Article 25-AA and unreasonably restricts farm operations within agricultural districts in possible violation of AML § 305-a(1)(a),” and that the Foie Gras Ban would threaten the viability of the Farms. The initial determination found the Foie Gras Ban’s legislative history demonstrated that the City recognized the sale ban’s impact on the Farms and its use as a tool to end or change on-farm practices that the City finds objectionable (e.g. inhumane practices).
The initial determination also concluded that nothing in the legislative record indicated that the Foie Gras Ban was enacted to address public health or safety. The Commissioner invited the city to respond to the initial determination, specifically to address any threat to health or safety. The City’s response (i) insisted that the Foie Gras Ban did not fall within the purview of Section 305-a because the Foie Gras Ban did not have a direct impact on farm operations in Sullivan County and resulted from a policy decision to prevent cruel and inhumane animal treatment for the sole purpose of providing a culinary delicacy, and (ii) argued that such an expansive reading of Section 305-a impinged on home-rule powers.
The Commissioner’s Final (Re)Determination
- In December 2022, the Commissioner issued a final determination and order declaring the Foie Gras Ban violated Section 305-a(1) and the policy and goals of Article 25-AA. The City commenced a CPLR Article 78 proceeding to challenge the final determination on the grounds that the determination (i) exceeded the Commissioner’s jurisdiction and (ii) was arbitrary and capricious. In August 2023, the Court annulled the final determination as arbitrary and capricious because, at oral argument, the Commissioner admitted he had not reviewed the full legislative history; the Court remitted the matter for a redetermination.
In December 2023, the Commissioner issued his redetermination which, again, declared the Foie Gras Ban violated Section 305-a(1) and the policy and goals of Article 25-AA, and barred the City’s implantation of the Foie Gras Ban against the Farms. The Commissioner reiterated its prior findings, including: (i) force-feeding ducks to produce foie gras is a customary agricultural practice; (ii) there are no commercially viable alternatives to gavage for foie gras production; (iii) no State or federal law prohibits gavage or the sale of gavage products; and (iv) the Foie Gras Ban would result in significant loss of sales for the Farms and threaten their viability (e.g. use of gavage would restrict access to a major market, discourage investment in their properties, and threaten continued farm operations in agricultural districts). The City did not challenge these findings.
Given the Commissioner’s unreasonableness finding, the burden shifted to the City to demonstrate a threat to public health or safety to support the Foie Gras Ban. The City made no claim for public health or safety, and confirmed the Foie Gras Ban’s purpose is to carry-out a policy of preventing cruel and inhumane animal treatment for the sole purpose of producing a culinary delicacy, i.e. the Foie Gras Ban is an animal welfare measure.
The Commissioner rejected the City’s jurisdictional objection, and emphasized “AML § 305-a(1), by its express terms, reaches unreasonable local restrictions on farm operations operating in agricultural districts without regard to where the local governments are located.” The Commissioner also rejected the City’s argument that the Foie Gras Ban merely regulated conduct within the City’s jurisdiction: “[t]hat the City lacks the power to directly regulate farm productions methods beyond its jurisdiction, does not insulate its sales ban from the Department’s Section 305-a power to review and supersede a local law that unreasonably restricts farm operations within agricultural districts from selling its products into the local government’s market.”
The City commenced a CPLR Article 78 proceeding to challenge the Commissioner’s redetermination, arguing that the redetermination (i) is ultra vires because the Foie Gras Ban does not directly restrict or regulate farm operations within an agricultural district, (ii) contravenes the N.Y. Municipal Home Rule Law and broad local police powers, and (iii) is arbitrary and capricious. The Farms intervened to oppose the City’s challenge.
D. Judicial Review
The Court noted the deferential review standard: “[a]n action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts” and “an agency’s interpretation of the statutes it administers must be upheld absent demonstrated irrationality and unreasonableness.” The Court also noted that it need not accord deference if the issue is one of pure statutory interpretation.
The Court first considered whether a retail sales ban in the City where foie gras might otherwise be sold (i.e. the Foie Gras Ban) restricted or regulated farm operations in Sullivan County’s agricultural districts where the foie gras is produced, thus invoking the Commissioner’s jurisdiction under Section 305-a. The City argued that the Foie Gras Ban fell outside Section 305-a’s scope because it did not directly restrict or regulate farm operations in agricultural districts – it merely prohibited certain sales. Although the Commissioner acknowledged the Foie Gras Ban does not prevent the Farms from continuing to produce foie gras by gavage, the Commissioner argued the plain language of Section 305-a provides broad discretion in determining whether a local law restricts or regulates – whether directly or indirectly. Additionally, the Farms argued that U.S. Supreme Court and New York Court of Appeals precedents consider the practical, indirect effects of legislation in various context, including preemption.
The Court engaged in a statutory construction analysis. The Court’s fundamental role is to effectuate the Legislature’s intent, the clearest indicator of which is the plain text. Plain text controls, unless the intent and purpose would be defeated or the literal reading creates absurd or unreasonable results contrary to the purpose. All parts of a statute should be given effect and an interpretation should not render meaningless any part(s). Where a statute is part of a broad legislative scheme, the language must be considered in a context that harmonizes all related provisions.
In reviewing Section 305-a’s language, the Court compared a broad construction with a narrow construction. In its broad approach to the Commissioner’s powers, the Court reasoned that the terms “restrict or regulate” (which Article 25-AA does not define) are not expressly limited to local laws that directly restrict or regulate farm operations; rather, the language is broad and unqualified:
[T]he literal language of the statute is sufficiently expansive to encompass a local sales ban that threatens the viability of farm operations based on the production practices within those agricultural districts. Construing the statutory terms in an ordinary and literal sense, [the Foie Gras Ban] can be understood as an indirect regulation that operates to restrict the production of foie gras within agricultural districts. In other words, the Farms’ operations, which include[] practices that contribute to the production, preparation and marketing of livestock products as a commercial enterprise would be unreasonably restricted or regulated by the retail sales ban.
In its narrow approach, the Court reasoned that the terms “restrict or regulate” relate to “the powers of local government to adopt comprehensive plans and local laws, ordinances, rules, or regulations.” The Court noted that, in the context of local law making, “restrict” and “regulate” are generally understood in a narrower sense – implicating notions of “territorial jurisdiction.” New York localities enjoy broad home-rule powers, which are limited to regulating conduct within their geographical boundaries.
The Court surmised that, because localities lack authority to enact and administer policies or laws extraterritorially, “it seems doubtful that the Legislature contemplated the terms “restrict or regulate” as referring to anything more than governance of certain types of conduct (i.e. farm operations) occurring within the boundaries of agricultural districts. Section 305-a’s legislative history does not show that the Legislature contemplated reviewing the effects of local laws governing conduct outside of agricultural districts; rather, the legislative history shows the Legislature intended to review “traditional forms of direct regulation” that might threaten farming.
All prior administrative and judicial precedents interpreted and applied Section 305-a to local laws governing conduct within agricultural districts – consistent with the legislative history. Even the 1997 amendments to Section 305-a do not evince any legislative intent to expand the Commissioner’s jurisdiction to local laws affecting conduct outside of agricultural districts (or, presumably, their territories).
With these competing constructions in-mind, the Court expounded that there is a good reason for the absence of legislative history or precedent for Section 305-a’s jurisdiction over the effects of sales bans (i.e. the effect of a local law outside of agricultural districts and/or outside of a local jurisdiction) – it has not happened before:
There simply is no precedent for a local government, particularly the State’s largest consumer market, to ban the sale of agricultural products produced in compliance with federal and State law based on objections to farm practices. That this issue appears to be one of first impression simply indicates that few, if any, local governments have had the desire and the market power to attempt to alter on-farm practices of farms beyond its jurisdiction.
The Court opined on the prior Legislatures’ perspectives. Although the Legislature might have been unfamiliar with the concept of sales bans when it passed the subject statutory framework, the Legislature was familiar with prohibition against officials doing indirectly what official were forbidden from doing directly. It is well-settled that “State law cannot be circumvented by indirection.” The Legislature was also familiar with the principle that semantics cannot dictate decisions. Courts must review the purpose and direct consequence of a local law to determine whether the local law is preempted or superseded.
The Court, then, addressed two aspects of the Foie Gras Ban: (i) purpose and (ii) impact.
- The Commissioner’s redetermination found that the City adopted the Foie Gras Ban as an animal welfare measure to discourage or end a practice it deemed inhumane: “[t]he City’s objective was to either end or change the on-farm practice of force-feeding based on animal welfare concerns.” The City did not dispute these findings.
Additionally, the Court noted that the multi-thousand-page legislative history overwhelmingly supported characterizing the Foie Gras Ban as an animal welfare measure, and only included two minor references to health or safety. The text of the Foie Gras Ban clearly intended to protect the welfare of birds, rather than the health of safety of the human public. The Foie Gras Ban made explicit reference to a farm operation that occurs within agricultural districts, rather than referring to the nutritional characteristics of foie gras or how gavage products might affect humans.
- Based upon information the Farms provided, the Commissioner determined that the sale ban would cause the Farms to suffer a significant loss of sales and a substantial reduction in employees. The City did not challenge these findings, and the administrative record showed that the Farms would be severely impacted by the loss of one of its largest markets.
E. The Court’s Conclusion
The Court ultimately upheld the Commissioner’s redetermination. The Commissioner reasonably and rationally determined that the Foie Gras Ban, through its purpose and impact, directed the Farms to discontinue a farming operation in agricultural districts, i.e. restricted and regulated the Farms. The City, though, had no authority to direct Farms to change their farm operations and cannot avoid Section 305-a review by attempting to exercise such authority by indirect means.
The Court concluded that broadly construing Section 305-a to cover the Foie Gras Ban (or sales bans generally) was not contrary to the statute’s purpose and does not lead to absurd or unreasonable results. A narrow construction would actually defeat the statute’s purpose because it would permit localities to indirectly impose unreasonable restrictions on farm operations even though localities lack the power to do so directly. If the Foie Gras Ban were not within the purview of Section 305-a, then localities state-wide could enact sales bans to restrict or regulate any farming practices they deemed objectionable.
The Court noted its decision is in keeping with federal precedent cited by the Commissioner and the Farms, i.e. “a government official cannot do indirectly what she is barred from doing directly.” The Court identified the leading case as National Meat Assn. v Harris, 565 US 452 (2012).
In National Meat Assn., the U.S. Supreme Court unanimously invalidated California’s ban on the sale of products from non-ambulatory pigs as preempted by the Federal Meat Inspection Act (“FMIA”), which prevents states from imposing any additional or different requirements within FMIA’s scope and concerning slaughterhouse facilities or operations. Proponents of California’s ban tried to argue that the sales ban did not regulate slaughterhouse operations because it only applied after operations ended, i.e. once meat passed post-mortem inspection, the FMIA is not concerned with whether or how it is sold. The Supreme Court rejected this argument, and held:
The idea – and inevitable effect – of the sales ban is to make sure slaughterhouses remove nonambulatory pics from the production process…by criminalizing the sale of their meat…[T]he sales ban [] functions as a command to slaughterhouse to structure their operations in the exact way the remainder of the California law mandates. And indeed, if the sales ban were to avoid the FMIA’s preemption clause, then any State could impose any regulations on slaughterhouses just by framing it as a ban on the sale of meat products in whatever way the State disapproved. That would make a mockery of the FMIA’s preemption provisions.
The City argued that reliance on National Meat Assn. was misplaced given subsequent decisions in National Pork Producers Council v Ross, 598 US 356 (2023), and Association des Eleveurs de Canards d’Oies du Quebec v Bonta (“Canards”), 33 F4th 1107 (9th Cir 2022), cert denied, 598 US ___ (2023). The Court disagreed.
National Pork Producers is a dormant commerce clause case in which the U.S. Supreme Court upheld California’s ban on selling products from pigs housed in inadequately-sized stalls. In Canards, the Ninth Circuit Court of Appeals addressed the Poultry Products Inspection Act’s (“PPIA”) ingredient preemption prohibiting States from imposing requirements on marking, labeling, packing, or ingredients vis-à-vis California’s ban on the sale of force-fed products. The Court of Appeals upheld the sales ban and concluded the ban was not subject to the ingredient preemption because the sales ban “works at a remove” from the slaughterhouses implicated in National Meat Assn.
The City argued these two decisions demonstrate that there is no federal precedent defining a sales ban as a farming regulation – let alone a direct regulation, and that sales bans, like the Foie Gras Ban, operated “at a remove” from farm operations; farms are free to continue the force-feeding practice, but might experience reduced demand in a particular location.
The Court rejected these arguments, analogized this case to National Meat Assn., and distinguished National Pork Producers and Canards. The Foie Gras Ban within the City “is no more removed from the Sullivan County agricultural districts where foie gras is produced than California’s ban on selling non-ambulatory pigs was removed from the operations of the slaughterhouse.”
Conversely, in Canards, the sellers only argued that the PPIA’s ingredient requirement preempted the sales ban and did not argue that the sales ban affected slaughterhouse operations: “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.” Thus, the “at a remove” argument was stronger in Canards.
National Pork Producers is a dormant commerce clause case and, thus, inapposite. Further, although that case did recognize the legitimacy of a government’s interest in animal welfare and using the political process to effectuate the electorate’s values, the issue in this case concerns a clash between the powers of the State and one of its political subdivisions.
By Decision, Order & Judgment dated June 21, 2024 , the Court held the City’s Foie Gras Ban fell within the purview of Section 305-a, and the City’s desires must give way to the State’s policy of promoting agricultural land as a viable segment of the economy. In July 2024, the City and non-party animal rights groups appealed.
[1] Farm operations include “the land and on-farm buildings…and practices which contribute to the production, preparation and marketing of crops, livestock and livestock products as a commercial enterprise” (AML § 301[11]).
[2] The Court refers to both the Department’s and the Commissioner’s determinations; this writing will refer to either/both as the Commissioner’s determinations.
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