SAN FRANCISCO – After a U.S. Supreme Court decision not to hear a challenge of California’s law banning possession and sale of shark fins, a fight has ended, and shark fin soup will not be on the menu at many Asian restaurants.
In 2011, the state of California banned the possession and sale of shark fins, which went into effect in 2013. This brought about years of challenges by restaurants, Asian-American community organizations, and shark fin suppliers, who argued that the ban unfairly targeted the Asian-American individuals because shark fin soup is a traditional Chinese dish.
A federal law already prohibits the removal of fins from live sharks, but the California law expanded on that and outlawed having and selling fins from sharks, regardless of whether the animal was alive or dead when the fin was obtained.
The Supreme Court’s decision not to hear the most recent challenge to the 9th Circuit Court’s ruling that upheld the state’s ban is not likely to create a black market for shark fins, Christopher B. Yeh, an associate at Duane Morris LLP, told the Northern California Record.
“It’s possible, but the federal law was always in place. Any trafficking that might occur would fall under the federal ban,” Yeh said.
The question of how large the market would be, outside the soup is questionable, according to Yeh.
“My understanding is that [shark fin] use is pretty much limited to that soup. It’s not widely consumed,” Yeh said. “Its use in the soup is for texture. Shark fin has a firm jelly consistency. You can get the flavor without the shark fin.”
One alternative to shark fin, he said, is sea cucumber.
In the most recent challenge to California’s law, the plaintiffs argued that the state law was preempted by a federal law, the Magnuson-Stevens Fishery Conservation and Management Act. Previously, those who did not agree with the law claimed that not only was it pre-empted by the federal law, but that it was meant to discriminate against the Asian-American community.
The challenge to California’s ruling was that it was discriminatory to Asian-Americans, but in its ruling, the 9th Circuit Court of Appeals held that the state’s ban on possession of fins is “facially neutral.” According to Yeh, the courts went so far as to look at the legislative intent as the law was written.
Yeh said that the "facially neutral" test is kind of like the "smell test."
“If you look at the law and it’s specifically targeting the Chinese, that’s the opposite of facially neutral,” Yeh said. “In this situation, the courts said that there’s nothing on the face of the California law that targets Asian-Americans, but the courts are still interested in the effect of the law.”
Instead, the 9th Circuit Court found that law was driven by environmental concerns, and questions of conservation.
California is not the first state to ban the possession and sale of shark fins. Other states, including New York, Texas, Massachusetts, Hawaii, Oregon, Washington, Illinois, Maryland, Delaware, Samoa and Guam have also banned trade in shark fins.