California’s Foie Gras Ban Overturned by Federal Court

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jan 8, 2015

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A California ban on force-feeding geese for the purpose of fattening their livers to create the delicacy foie gras has been struck down by a federal judge.  The bill, which effectively shut down the state’s foie gras market, was challenged by California restaurants and two out-of-state foie gras producers arguing that the law unconstitutionally interfered with commercial activities.  Over the objection of animal rights activists who supported the law, Federal Judge Stephen V Wilson sided with the affected businesses and struck down California’s foie gras ban for conflicting with federal law.

California Bans Foie Gras

In 2004, the California legislature passed a bill that “prohibits a person from force-feeding a bird for the purpose of enlarging the bird’s liver beyond a normal size,” and prevents businesses from selling foie gras that is produced out of state.  The purpose of the bill was to handicap the market for foie gras produced both in and out of state by making it illegal to produce and import the dining delicacy.  In 2012, the bill went into effect, putting venders and restaurants at risk of fines up to $1,000 for making and selling foie gras, although residents were still permitted to possess and eat it providing they did not obtain it from illegal channels.

Restaurant owners and out-of-state foie gras producers filed the lawsuit against California claiming the ban unconstitutionally interfered with interstate commerce of poultry, which is an area of law that comes under the jurisdiction of the federal government.

Federal Judge Overturns Foie Gras Ban

In his opinion, posted here, Judge Wilson took on two legal questions: 1) does The Poultry Products Inspection Act (PPIA) forbid states from passing laws regulating the poultry trade; and 2) did the California law against the manufacture or sale of foie gras from force fed birds, which is a subset of foie gras products, fall under the jurisdiction of the PPIA.  The US Constitution makes illegal any state law that directly contradicts with federal regulation, and, in a straightforward decision, Judge Wilson determined that California’s encroachment into the poultry industry overstepped.

In regards to the first issue, Judge Wilson established that, “The PPIA regulates the distribution and sale of poultry and poultry products, [including] foie gras and other products made ‘wholly or in part from any [goose or duck] carcass or part thereof.’ The PPIA expressly preempts states from imposing: [m]arking, labeling, packaging, or ingredient requirements [that] unduly interfere with the free flow of poultry products in commerce in addition to, or different than, those made under this chapter [the PPIA].”

Moving on to the more important concern Judge Wilson concluded, “Section 25982 expressly regulates only the sale of products containing certain types of foie gras products— i.e. foie gras from force-fed birds. Section 25982 does not ban the practice of force feeding; this practice is the subject of a separate provision. Thus, Plaintiffs’ foie gras products may comply with all federal requirements but still violate § 25982 because their products contain a particular constituent—force-fed bird’s liver. Accordingly, § 25982 imposes an ingredient requirement in addition to or different than the federal laws and regulations.”

Agreeing with the restaurateurs and foie gras sellers that the companies involved in the trade had suffered an economic harm, Judge Wilson complied with the Plaintiffs’ request and overturned the law.

Foie Gras Opinion Divides Litigants

In the wake of the decision to overturn California’s ban on the production and sale of foie gras, chefs across the state expressed satisfaction that the matter had finally been settled after more than 10 years of dispute.  In an interview with the LA Times this week, Ken Frank, a renowned chef in Napa Valley, indicate he would waste no time in taking advantage of the ruling by saying, “Foie gras is legal in California and will be on my menu tonight.”

On the other side of the issue, animal-rights activists eviscerated the foie gras industry with the following statement from PETA President Ingrid Newkirk, “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.”  California Attorney General Kamala Harris, who argued that the plaintiffs lacked standing because they were not personally threatened with prosecution for violating the law, promised to review the decision to determine whether or not the state would appeal.

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