Legal Issues with California’s Foie Gras Ban

Seth Victor

Late last month PETA filed a suit against Hot’s Restaurant Group in Los Angeles County, CA, alleging that the defendant violated the California state law that went into effect earlier this year prohibiting the sale of foie gras. The essence of the hots-kitchencomplaint is that Hot’s Kitchen, the specific restaurant in question, has skirted the law by selling a hamburger for an increased price and including with the hamburger a “complimentary side of foie gras.” Being that foie gras is sold legally at gourmet restaurants around the country for a pretty penny, on its face Hot’s seems to be blatantly rebelling against California’s ban, taking a position common among many restaurant owners. Taking the ethical debate over foie gras (ahem) off the table for a moment, is what Hot’s Kitchen doing illegal?

 “THE Burger,” as it is known, is served with balsamic thyme onions and whole grain mustard, plus the side of foie gras. For all of these accoutrements, the price of THE Burger is between $8 to $13, whereas the other burgers on the menu hover around $6. As the epicenter of such epicurean jocundity, foie gras can fetch around $50 per pound. Even though I doubt anyone is getting a pound of foie gras with her burger, it’s questionable if a two to seven dollar difference properly reflects the market price of a side of liver. The keystone to this whole suit, remember, is whether the foie gras is being sold. No one contests that the legislature allows servers to give away foie gras without profit, or that people have a right to consume it.

The code in question prevents both the sale of foie gras, and the force feeding of birds for the purpose of enlarging the liver. To be a violation, the item must first be foie gras, and must be sold. PETA argues that the item is foie gras because, well, the menu says it is. Simple enough. It is being sold because the foie gras is being served on the burger as a topping, not as a separate “on the house” side dish. Furthermore, proper market value aside, this burger carries an increased price distinct from non-foie gras burgers, implying that the price is raised to reflect this topping. PETA further asserts that if the foie gras is indeed free, it could be had by customers without any purchase, which it cannot.

When you buy a hamburger, what are you buying? Some restaurants have a list of toppings you can add to your burger, and some places charge extra depending on the additions. Some places do not, and absorb the price of toppings into the purchase price of the sandwich. Many diners allow you to order a burger for one price, or order the burger deluxe for $2 or so more which gets you the tomato, lettuce, and onion, toppings that some people consider mandatory. foie gras burgerPrices certainly fluctuate depending on the topping, from a Tex-Mex burger with jalapeno to a mushroom burger, which suggests that you are indeed paying for the toppings and that they are thus for sale. But what about the lettuce? Technically that is not part of the hamburger. It is provided because the restaurant knows you expect it, and it is giving it to you “complimentary.” Can’t Hot’s make a conscious decision and give you a foie gras topping the same way, swapping per item profit for more business?

Hot’s may also have a defense to whether what it is serving is foie gras. Though some foreign producers claim ethically raised foie gras can be raised, there is no common method in the United States for creating fatty liver without force feeding. Despite this lack of alternatives, restaurant owners have claimed difficulty following the law because they don’t know how the birds were raised prior to being purchased. Whether that is plausible deniability or mandatory ignorance, it’s hard to believe in this age of locavores and foodies that an owner couldn’t seek out this information. Still, it’s an argument that has been made, and one that may have to be argued.

How foie gras is raised, and the owners’ knowledges of those conditions, coincides with the constitutional arguments against the law. There are issues regarding the right to fair trade with interstate and international producers of liver, but perhaps more prevalent is the claim that the law is too nebulous to be enforced. Though a penalty of $1,000 a day can be levied on any violators, few if any such fines have been issued. Many enforcers claim that it is indeed too hard to determine what kind of feeding was forced upon a bird liver in a given restaurant, and that the label “foie gras” doesn’t mean that it is necessarily a product that is in violation of the law. Additionally, there is confusion over how to proceed against places like Hot’s that serve the dish without a direct charge to the customer, a conundrum that PETA no doubt hopes to resolve via this suit.

You might also question what good all of this hubbub over goose liver is really doing. Even if the foie gras ban is enforced and isn’t overturned, restaurants can still sell a variety of animal confections. Maybe we prevent geese from having tubes down their throats, but there is no law preventing birds from being overfed sans tubes and serving them geeseup as (oo la la!) duck confit. Perfectly legal, and by many opinions, quite tasty. For all the cries about animal cruelty, isn’t it at least slightly hypocritical to ban foie gras and allow veal parmesan to be the centerpiece of national menus? Perhaps fellow animal advocates respond with a resounding “yes,” cry havoc and let slip the dogs of animal liberation. But from the restaurants’ point of view, there is a hint of arbitrariness. Rabbits, pigs, ducks, and chickens are all killed at higher rates than geese (overall), and the average industry conditions for these animals are less than inspiring. Why single out goose liver?

Why indeed. If you are on the side of animal rights or animal welfare, you take the ban as a hard-fought victory (one of a precious few), hope PETA is successful and that the coming constitutional challenges fail, and strive to use the momentum from the outrage over force feeding to ban other cruel animal practices. If you are on the side of the restaurants and foie gras connesuirs, you wonder how far all of this will go, and what else governments will add to the growing list of things we cannot eat or drink. And if you are an objective practitioner of the law, maybe you wonder if there will ever be legislation clearly written to accurately achieve what it means to do. The people have spoken, but with these potential loopholes, what exactly are they saying?

One Response

  1. Quite a conundrum. Banning animal-derived food products by species or by processes used (gavage in this case) seems like an eternal battle, especially when, as you say, there are ways to get around the laws.

    It seems more likely that animals will be removed from circuses and marine parks/aquariums (“aquaprisons,” Joan Dunayer calls them) before restaurants and markets will stop catering to connoisseurs of cruel cuisine.

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