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
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
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
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.