Ninth Circuit Leaves Foie Gras Ban in Place

Tuesday, September 3, 2013

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Ninth Circuit Leaves Foie Gras Ban in Place

By KENNETH OFGANG, Staff Writer

Producers of foie gras have not established that a California law banning the delicacy violates the Due Process Clause or the Commerce Clause, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The panel affirmed U.S. District Judge Stephen Wilson’s order denying the plaintiffs—New York- and Quebec-based producers and a California restaurant that wants to serve the dish—a preliminary injunction. The Court of Appeals agreed with Wilson that the plaintiffs are unlikely to prove that their interest in selling foie gras overrides the public interest in protecting animals from cruelty.

Judge Harry Pregerson wrote for the Court of Appeals that producers of foie gras—the fatty liver of a force-fed goose or duck — “failed to raise a serious question that they are likely to succeed on the merits” of their complaint, which continues before Wilson.

Took Effect Last Year

The foie gras ban, enacted in 2004 but not operative until last year, encompasses Health and Safety Code Sec. 25981—which prohibits force-feeding of ducks and geese in California for the purpose of enlarging their livers—and Sec. 25982, which bars the sale in this state of products created by force-feeding ducks and geese. The plaintiffs only challenged Sec. 25982.

—AP

This file photo shows chef and owner Josiah Sloane, right, prepare a foie gras dish at Sent Sovi in Saratoga, Calif.

They claimed that the law is too vague to pass muster under the Fourteenth Amendment, arguing that it is impossible to determine when a bird has been forced “consume more food than a typical bird of the same species would consume voluntarily,” which is the statute’s way of defining force-feeding. Pregerson noted that the plaintiffs follow a protocol involving four stages of feeding ducks, and that in the final stage, known as “gavage,” the feeder determines how much is to be fed to the duck.

“The specific example of force feeding under the statute—feeding a bird using a tube so that the bird will consume more food than it would consume voluntarily—is how Plaintiffs feed their ducks during the gavage stage,” he wrote, precluding a serious argument that they do not know how much they can feed the duck and still produce a product that can legally be sold in California.

No Discrimination

Nor, he wrote, did the plaintiffs show that the law discriminates against, or directly regulates, interstate or foreign commerce.

“Because § 25982 bans the sale of both intrastate and interstate products that are the result of force feeding a bird, it is not discriminatory,” Pregerson explained. And the law does not directly regulate the plaintiffs’ activities outside the state, it merely prevents them from selling their products in California, just as § 25981 would prevent a California producer from force-feeding ducks in order to sell foie gras outside the state.

The jurist elaborated:

“At this stage in the proceedings, Plaintiffs have not demonstrated that a nationally uniform foie gras production method is required to produce foie gras. If no uniform production method is required, Plaintiffs may force feed birds to produce foie gras for non-California markets. California’s standards are therefore not imposed as the sole production method Plaintiffs must follow. We therefore hold that the district court correctly concluded that Plaintiffs have not raised serious questions that § 25982 ‘require[s] an individual or business to choose between force feeding a bird in another state and complying with California law.’”

Marcus Henley, the operations manager of New York’s Hudson Valley farm, told The Associated Press he and his lawyers would continue to fight the California law. Henley said lawyers would appeal Friday’s ruling while continuing to argue in the Los Angeles district court for the invalidation of the California law.

“This isn’t like fireworks, nobody is being harmed by foie gras,” said Henley, who noted some California consumers continue to legally order foie gras online.

But Carter Dillard, litigation director of the Animal Legal Defense Fund, hailed the court’s decision and explained in a blog post why animal rights advocates think the issue is important.

“While causing animals in food production to suffer is never justified, animal cruelty occurs along a spectrum, and inducing a painful and debilitating disease in an animal just to make his organs taste better is especially cruel,” Dillard wrote.

According to news reports, a number of European countries ban the force-feeding of ducks and other animals, but do not ban the importation and sale of foie gras. Chicago passed ban on sales in 2006, but it was widely defied and was repealed in 2008.

The Jerusalem Post reported that Israel, which has had a force-feeding ban for nearly a decade, is close to passing a ban on commercial importation and retail sale, but Israelis would still be able to import foie gras privately.

The case was argued in the Ninth Circuit by Michael Tenenbaum of Santa Monica for the plaintiffs, Deputy Attorney General Stephanie Zook for the state, and Melissa Grant, with the Los Angeles firm Capstone Law, for amici defending the state law.

Senior Judge Raymond Fisher and visiting Senior District Judge Wiley Y. Daniel of Colorado joined in the opinion.

The case is Association des Eleveurs de Canards et D’oies du Quebec v. Harris, 12-56822.