No Standing to Object to Foie Gras

foiegras_forcing-367x512New York is the foie gras capital of the United States.  Several years ago, the Humane Society, among several other complainants, asked the Commissioner of Agriculture to declare foie gras an adulterated food product.  The underlying rationale was that force-feeding ducks causes them to become diseased, as evidenced by their engorged livers.  Those engorged livers would therefore become an adulterated food product under New York Agriculture & Markets Law and thus should be removed from the market. The Commissioner declined to issue such a ruling and so the groups sued.

To my mind, the plaintiffs present a creative and compelling argument.  Unfortunately, it never got a hearing.  An appeals court recently upheld the lower court’s dismissal of In the Matter of the Humane Society of the United States v. Brennan for lack of standing.  According to the court, plaintiffs could not show that their alleged injury differed from any injury that might have been suffered by the public at large.  In legal parlance, they could not claim a “particularized injury” and thus lacked standing to sue.

I have written elsewhere about the inanity of the injury prong of the federal standing doctrine, which NY law mirrors.  This case reflects much of what I believe ails the doctrine.  Putting aside the specific issue of foie gras, it would seem that in order for a person to sue to remove a potentially dangerous food product from the market, she must first fall ill because of it.  Since the statute’s goal is to prevent sickness and protect public health, this seems counter-intutitive.

One may not agree that engorged duck livers indicate diseased ducks, but the merits of the case deserve a hearing.  The plaintiffs are considering appealing to the NY Court of Appeals.  Here’s hoping for a different result.

–David Cassuto

UPDATE: See here for a review of The Foie Gras Wars: How a 5,000-Year-Old Delicacy Inspired the World’s Fiercest Food Fight by Mark Caro, a reporter for the Chicago Tribune.  The book quotes Dr. Ian Duncan, consultant to the Canadian government and author of many of Canada’s poultry regulations, who states: “[f]orce feeding quickly results in birds that are obese and in a pathological state, called hepatic lipidosis or fatty liver disease. There is no doubt, that in this pathological state, the birds will feel very ill.”



3 Responses

  1. […] blogged before (and written more substantively) about the incoherence of federal standing jurisprudence.  I […]

  2. […] gras, whose production has been challenged in court, is “revered as one of the most exquisite foods in the world” by gourmands. It is but […]

  3. […] gras, whose production has been challenged in court, is “revered as one of the most exquisite foods in the world” by gourmands. It is but a […]

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