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A district judge has ruled that California’s ban on foie gras is unconstitutional
Chefs all over the state are celebrating the return of foie gras, while animal rights groups have promised to work an appeal.
California’s ban on the sale of fatty goose liver, or foie gras, has been invalidated by U.S. District Judge Stephen V. Wilson, who ruled that the law was unconstitutional because it interferes with an existing federal law that regulates poultry products, reports The Los Angeles Times.
Groups opposing the sale of foie gras, including the Animal Legal Defense Fund and the Humane Society plan to ask California's Attorney General to file an appeal.
The state’s ban on foie gras, which went into effect in 2012, has since been challenged by a number of California chefs.
“I’ve been jumping up and down for about 90 minutes,” Napa Valley chef Ken Frank, told The Los Angeles Times. Another chef, Michael Cimarusti, compared the ruling to the end of Prohibition.
“First and foremost I am very happy for my guests, I know the people of California have missed their foie,” chef Ludo Lefebvre told The Los Angeles Times. “Speaking as a French chef, it is an important ingredient and part of the legacy of French cooking, so I am thrilled to be able to add it to the menus of Petit Trois and Trois Mec."
Foie Gras: Where is it Actually Banned?
With the news that France has implemented a three-month ban on foie gras production in an attempt to contain an outbreak of avian flu, the controversial luxury food is once again at the top of the foodie news agenda – not that it ever strays too far from the summit.
The ban is expected to hit French exports of the fatty duck or goose liver hard: France currently exports 20,000 tons a year, mainly to Europe, the USA and China, and is a member of the European Foie Gras Foundation, along with Belgium, Bulgaria, Hungary and Spain.
Farmers in Canada and New York and a restaurant then challenged part of the law that banned liver produced out of state from being sold, which led to a resumption of foie gras dishes being served in California restaurants. The ban went back into effect after the Supreme Court decided not to hear the case, pending action in the lower court.
The Humane Society of the United States said Wednesday that the group expects this will be the end of litigation on the matter. “Yesterday’s decision unequivocally upheld California’s foie gras law, confirming that it remains illegal to sell foie gras in California — including, explicitly, foie gras sales by restaurants. The ruling also confirms and clarifies what has been true since the law’s inception: that it was never designed to apply to personal possession and consumption of foie gras within California.”
Sale of Foie Gras is Legal Again in CaliforniaMarinated foie gras ready to go into the oven
This morning at 11:45 a.m., chef Ken Frank of La Toque was in a meeting when he received a phone call from Michael Tenenbaum.
Frank: “I am in a meeting, I cannot talk to you.”
Tenenbaum: “Shut up, Ken. We won!”
This was the second phone call Tenenbaum placed to announce the news: the sale of foie gras is now legal in California.
As a lawyer (and a gourmet), Tenenbaum fought very hard to overturn California Senate bill No. 1520, signed on September 29, 2004, by Governor Arnold Schwarzenegger. It reads (extracts):
CHAPTER 13.4. FORCE FED BIRDS
25980. For purposes of this section, the following terms have the following meanings:
A bird includes, but is not limited to, a duck or goose
(b) Force feeding a bird means a process that causes the bird to consume more food than a typical bird of the same species would consume voluntarily. Force feeding methods include, but are not limited to, delivering feed through a tube or other device inserted into the bird’s esophagus.
25981. A person may not force feed a bird for the purpose of enlarging the bird’s liver beyond normal size, or hire another person to do so.
25982. A product may not be sold in California if it is the result of force feeding a bird for the purpose of enlarging the bird’s liver beyond normal size.
His tenacity prevailed and on January 7, 2015, U.S. District Court Judge Stephen V. Wilson issued a ruling that overturned the bill. The judge ruled it was unconstitutional because it interferes with an existing federal law that regulates poultry products.
Ken Frank later spoke on the phone with me, saying: “I am very, very happy. I am overjoyed for chefs and consumers to once again serve and enjoy foie gras without the fear of lawsuits. The game is over for the activists. They cannot win an honest argument. It is not true that foie gras is cruel and is a diseased product. It crumbled on the face of facts.”
Expect to find foie gras at La Toque as soon as tonight. Ten pounds are on the way from Hudson Valley Foie Gras. Chef Kris Morningstar ordered eleven pounds for his new restaurant Terrine. Chef Josiah Citrin of Mélisse is preparing for tonight sautéed foie gras with turnips, hazelnuts in a blood orange sauce.Tomorrow, chef José Andrés will be offering free foie gras cotton candy at The Bazaar from 5 p.m. to 7 p.m. Chef Sean Chaney, one of the three plaintiffs, will have foie gras on the menu of his restaurant Hot’s Kitchen in Hermosa Beach, in many different forms and preparations.
- Lawyer Michael Tenenbaum and Sophie Gayot with foie gras
California's Statewide Ban On Foie Gras Is Getting Revived
A statewide ban on selling foie gras may soon be back on in California.
Foie gras, which means “fat liver” in French, is a luxury food item typically produced by force-feeding ducks or geese with a 10-12 inch feeding tube, which fattens the bird’s liver beyond its natural range.
Animal advocates criticize the process as cruel, and in 2004, California passed a law that prohibited the selling birds that had been force fed to enlarge their livers, Reuters reports.
At the time, the state’s legislative analyst wrote that the production of foie gras was “so hard on the birds that they would die from the pathological damage it inflicts if they weren’t slaughtered first,” according to the Los Angeles Times.
The law took effect in 2012, prompting celebrations from animal rights activists but backlash from some chefs who said it infringed on their rights to serve what they want.
However, in 2015, a Los Angeles U.S. District judge struck down the ban on the sale of foie gras, ruling it was an “ingredient,” and that the federal Poultry Products Inspection Act gives the U.S. Department of Agriculture sole jurisdiction over the ingredients that are allowed in poultry products. A ban on producing force-fed foie gras remains within the state.
But as of Friday, it looks like foie gras could soon be off California’s menus once again. A Pasadena-based appeals court overturned the 2015 ruling. Judge Jacqueline Nguyen wrote that the law was not banning an ingredient, but rather a method of production.
“It is not the livers that are force-fed, it is the birds,” she wrote, according to the Sacramento Bee. “The difference between foie gras produced with force-fed birds and foie gras produced with non-force-fed birds is not one of ingredient. Rather, the difference is in the treatment of the birds while alive.”
Nguyen also pointed out that more than a dozen countries — including Germany, the Netherlands, Italy, the United Kingdom — have some type of ban on forced feeding or foie gras, the Los Angeles Times reports.
Restaurants are not mandated to remove foie gras from menus immediately, though. Challengers of the ruling still have time to appeal it, and the ban won’t be officially reinstated until the appeals process is over, according to the San Francisco Chronicle. And that process could take months.
“As it stands right now, nothing changes,” Cathy Kennedy, director of pro-foie gras group Coalition for Humane and Ethical Farming Standards, told the Chronicle. “We are absolutely going to appeal.”
California foie gras ban goes into effect after Supreme Court rejects challenge
The U.S. Supreme Court on Monday rejected the foie gras industry’s latest challenge to California’s ban against the French delicacy made from the fattened livers of force-fed ducks and geese, leaving intact a ruling issued by a Pasadena-based appeals panel.
The Supreme Court’s inaction allows the prohibition to finally go into effect.
Diners have been able to order the pricey menu item in California since 2015, after a lower court struck down a law enacted in 2012 banning restaurants from serving the appetizer.
The state law went into effect in 2012 banning the sale of foie gras, but it was challenged in Los Angeles federal court by an association of foie gras producers in New York and Canada, along with a Hermosa Beach restaurant operator, who argued that the measure was vaguely written and interfered with state commerce.
A 2017 ruling by the Pasadena-based 9th U.S. Circuit Court of Appeals upheld the statute.
According to the law, a restaurant caught serving the gourmet item in California could be fined up to $1,000.
The animal rights organization People for the Ethical Treatment of Animals applauded the high court’s decision.
“The food industry has failed to end the ban on the sale of foie gras, which is made from tormented birds’ diseased livers and the production of which late 9th Circuit Judge Harry Pregerson — one of the members of the three-judge panel who had heard the case in 2017 — explicitly stated is ‘absolutely cruel,’” PETA President Ingrid Newkirk said in a statement.
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Judge Overturns California Ban on Foie Gras
LOS ANGELES — Foie gras is back on the menu in California. A federal judge on Wednesday struck down a state law barring sale of the fatty duck or goose liver, ending a ban that had lasted more than two years.
Animal rights groups have long decried foie gras, which has traditionally been produced by force-feeding ducks and geese, as inhumane. And in 2004, California became the first state to outlaw it the ban took effect in 2012.
Many chefs across the state, who had lamented the loss of a favored ingredient and led protests against the ban, exploded in celebration after the ruling was announced. “We are freaking out,” said Jon Shook, one of the chef-owners of Animal in Los Angeles. “The person who buys our foie gras called us from the courthouse crying with happiness.”
In the days before the ban took effect, the restaurant hosted an eight-course foie gras bonanza, in which diners bid adieu to this richest of ingredients by trying to eat a lifetime’s worth of it in a single night. Mr. Shook said he hoped to have it back on the menu by Friday.
The judge, Stephen V. Wilson of United States District Court, ruled the ban unconstitutional, saying it attempted to override existing federal law regulating poultry products. State officials can appeal the decision, but have not said whether they will.
For the moment, though, the French delicacy is again legal, and chefs are scrambling to get hold of it as soon as possible.
Animal rights groups, however, warned that any restaurants that resume serving foie gras could face protests.
“Foie gras is French for fatty liver, and fathead is the American word for the shameless chefs who actually need a law to make them stop serving the swollen, near-bursting organ of a cruelly force-fed bird,” Ingrid E. Newkirk, the president of People for the Ethical Treatment of Animals, said in an email. “A line will be drawn in the sand outside any restaurant that goes back to serving this torture in a tin.”
Still, that warning has done little to dampen the enthusiasm of chefs — and diners — here, who have gone two and a half years without their bird livers.
“I’m just very excited to have some culinary freedom back,” said Josiah Citrin, the chef and owner of Melisse in Santa Monica. He plans to get foie gras back on his customers’ plates as soon as possible.
While several restaurants had given free tastes of foie gras while it was banned — hoping to find a way around the law by offering it as a gift — Mr. Citrin said he had not served it. “When I finally got to make a foie gras terrine in France, it was such an honor,” Mr. Citrin said. “I’m really happy to be able to use it again.”
But he added, “I don’t think this is over right now.”
Mr. Shook, even as he ordered three cases of foie gras for Friday night, agreed.
“Until the product is actually in the restaurant and we’re physically able to serve it, I just won’t believe it,” he said.
Judge's Ruling Means Foie Gras Is Back in California
Last week a federal court in California handed a partial victory to the parties suing the state over its wrongheaded and unconstitutional ban on the sale of foie gras. Eater called the ruling "a major win" for the plaintiffs, who include a Canadian group that represents foie gras producers there and New York State's Hudson Valley Foie Gras.
Foie gras is a French delicacy made from a duck or goose liver that has been fattened using a process known as gavage . While some animal-rights activists claim gavage is cruel, many consumers, restaurateurs, and foie gras producers say the feeding process is not at all cruel.
The battle over foie gras in California has been a long and arduous one. The day after California's ban took effect in 2012, the plaintiffs sued, as I first detailed here . The case has been winding its way through the courts ever since. ( I've taken an active role in fighting the ban, writing and submitting a U.S. Supreme Court amicus brief on behalf of the Reason Foundation—which publishes Reason —and the Cato Institute in 2018. )
In his order last week, Judge Stephen V. Wilson of the U.S. District Court for the Central District of California granted the plaintiffs' motion for summary judgment on the plaintiffs' narrow question of whether the state ban applies to shipments and deliveries of foie gras inside California that are made as a result of an out-of-state purchase of foie gras. In its ruling, the court also rejected a pair of competing claims by the plaintiffs and defendant—rejecting the state's motion to dismiss the case and the plaintiffs' request to rule the California law violates the dormant Commerce Clause .
This month's " confusing " ruling holds that, under California law, sales are legal when an out-of-state seller sells foie gras that is not physically in California at the time of sale and the transaction and payment are processed outside the state (e.g., online). The ruling means a person in California may, for example, buy foie gras from an online seller based outside California and have that foie gras delivered to them legally in California by a third-party delivery service such as FedEx.
The court stated the obvious: that the state has no authority to regulate sales that take place outside its borders. The court also ruled California's foie gras ban was not intended to ban foie gras. "There is no evidence that California intended to completely ban the receipt or possession of foie gras in California, and there is ample evidence that this was not California's intent," the court determined.
Marcus Henley, vice president of Hudson Valley Foie Gras, one of the plaintiffs in the case, tells me he's thrilled with this week's ruling.
"We are gratified that the Court recognized that California's misguided ban was never intended to apply to foie gras products from out-of-state producers that are shipped to happy consumers in California," Henley says by email.
"For 50 years, Reason has proudly supported Free Minds and Free Markets," says California-based attorney Manny Klausner, a former editor of Reason and Reason Foundation co-founder and board member who joined me in submitting the aforementioned amicus brief . "Judge Wilson's ruling is a limited, yet meaningful, judgment in support of the economic liberty of California consumers and out-of-state sellers—and is truly a delicious development for anyone who takes liberty seriously."
Exactly how limited is Judge Wilson's ruling? And how might it impact restaurants in California?
"Of course, once the foie gras reaches California, it cannot be resold within the state, even if the transaction processes 'out of state' via an explicit agreement or otherwise," Judge Wilson writes in his ruling. Elsewhere, he notes a legal sale of foie gras to a person in California "does not encompass situations wherein the Seller is present in California during the sale, or the foie gras is already present in California when the sale is made."
While that language makes the law's stance on in-state restaurant sales sound pretty airtight, the ruling may have made some existing wiggle room a little more spacious.
For example, some restaurants in California that oppose the law have challenged it over the years by giving away foie gras to diners as part of a meal. Even one foie gras opponent suggested this week's ruling could revive that practice. Though a previous court ruling said such gifts constitute an illegal "sale" of foie gras in California, this month's ruling, which also turns on what constitutes a "sale" of foie gras, could provide an opening for California restaurants. I wouldn't be surprised if some are already consulting with their attorneys. Another possibility , which appears even more promising, involves a situation "where customers bring in their own foie gras and pay a chef to prepare it." Other ideas come to mind, too.
Regardless of whether these or other exceptions will allow California restaurants to serve foie gras legally—coupled with the fact the COVID-19 pandemic has forced top restaurants in the state to close temporarily or even permanently—fine dining is in trouble in California and across the country. Many cities and states, including California , have relaxed pointless prohibitions that harm consumers and businesses.
Could California lawmakers use that solid line of reasoning to decide their state should no longer be the only one in America that bans foie gras sales? Of course. Should they? By all means. Will they? Probably not.
For the plaintiffs, that means their decade-long fight against California's foie gras ban continues.
"We look forward to continuing our efforts to correct California's mistake," Hudson Valley Foie Gras's Henley tells me.
Reason Foundation Senior Fellow Baylen Linnekin is a food lawyer, scholar, and adjunct law professor, as well as the author of Biting the Hands That Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable (Island Press 2016).
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“The court stated the obvious: that the state has no authority to regulate sales that take place outside its borders.”
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Do libertarians oppose animal cruelty laws in their entirety?
If not, I fail to see how this one is irrational, even if you don’t agree with the specifics.
“I oppose animal cruelty except when it is tasty” doesn’t seem like a bedrock foundation of libertarianism.
Every time you brush your teeth, or eat anything other than the softest food or liquids, you are mass-murdering the bacteria (and other micro-denizens) in your mouth! Sending them, in their millions, to be cruelly dissolved in stomach acids! You mass murderer you!
On the other hand… I can see that the above-described decision is good for neither the goose, nor the gander! It means that our goose is cooked!
We need to become fully enlightened, and subsist on air alone! https://en.wikipedia.org/wiki/Inedia
Inedia (Latin for ‘fasting’) or breatharianism /brɛθˈɛəriənɪzəm/ is the belief that it is possible for a person to live without consuming food, and in some cases water.
Foie Gras is NOT animal cruelty.
Read this and try again.
Exactly. Cruelty is a judgement call in many cases. Animal rights nutbars would draw the line of cruelty at even touching animals, let alone eating them for food.
Foie Gras Legal Again in California
It appears that foie gras is legal once again in California and will be back on restaurant menus. According to recent news reports, a U.S. District Court Judge in Los Angeles revoked the ban on importing foie gras from out of state into California which means restaurants can again start importing and serving foie gras. According to the judge, the law was unconstitutional because federal poultry law regulates the sale and distribution of foie gras. As such, federal regulations supersede California’s health and safety codes.
Local Napa Chef Ken Frank of La Toque restaurant was one of several chefs that worked hard to overturn the ban and spearheaded having foie gras re-legalized in the state since the initial ban in 2012. He, along with many other chefs and restaurants in California, are excited and enthusiastic about the ruling. Many are planning to have foie gras back on the menu as early as tonight or tomorrow!
For more details about the ruling and judgement, see SF Eater or LA Times.
Federal judge strikes down California foie gras ban
Foie gras, the divisive delicacy produced from fatty duck or goose liver, may once again grace the menus of haute restaurants in California.
US district court judge Stephen Wilson ruled on Wednesday that a state law banning restaurants from serving foie gras infringed on a federal law which supersedes it.
The California law explicitly outlaws force-feeding birds “for the purpose of enlarging the bird’s liver beyond normal size”, the process by which foie gras has been made for thousands of years. It also banned the sale of products from force-fed birds.
Foie gras is made by force-feeding corn to young ducks and geese. The birds’ metabolism can’t cope with the amount of food, and their livers begin to swell to as much as eight times the normal size. Many animal rights activists call the process cruel and inhumane producers say the birds are not harmed by it.
The California legislature passed the ban in 2004 and then-governor Arnold Schwarzenegger signed it into law that year, but it didn’t take effect until 2012.
Foie gras producers in Canada and New York, along with local restaurant owners, challenged the ban in court, arguing that it was “unconstitutionally vague” and in violation of the US constitution’s commerce clause.
In August 2013 a federal appeals court upheld the law, and in October 2014 the US supreme court declined to review the decision.
Some restaurants, like San Francisco’s Dirty Habit, are planning to celebrate the ruling by serving foie gras as early as Wednesday night. Dirty Habit announced a special foie gras menu on Twitter.