District Court Upholds the Right to Sell Foie Gras

Seth Victor

The blawg previously commented on the ongoing issues surrounding California’s ban on the sale of foie gras, particularly the idea of giving away foie gras as a “complimentary side” when selling some other food. Last week Animal Legal Defense Fund filed another suit in the battle, arguing that La Toque restaurant was illegally selling foie gras in violation of California’s Health and Safety Code § 25982.

The suit, however, is somewhat of a moot point. On January 7th the California District Court overturned the Health and Safety Code banning the sale of foie gras, granting partial summary judgment to the plaintiffs, among whom is Hot’s Restaurant Group, the aforementioned makers of the complimentary foie gras side. The District Court summarize the issue as “whether a sales ban on products containing a constituent that was produced in a particular manner is an “ingredient requirement” under Poultry Products Inspection Act (PPIA).” The plaintiffs argued that the PPIA preempts the Health and Safety Code. Judge Stephen V. Wilson agreed, and has enjoined the California Attorney General from enforcing the law. In summary, PPIA is a federal law that regulates the sale and distribution of birds and expressly prohibits states from imposing certain conditions on food and ingredients. Judge Wilson held that the Health and Safety Code, which is a state law, was in conflict with the federal law, and that the federal law must be held above state regulations. The “production” of including fatty liver in the sales of food is, apparently, an ingredient, and therefore must be regulated, with regards to foie gras, at the federal level.

Health and Safety Code § 25981, which bans the practice of force feeding a bird for the purpose of fattening the liver, was not before the District Court, and remains in effect. Also, there are several other facets of the plaintiff’s argument that were not granted summary judgment, including a Commerce Clause attack. The Commerce Clause argument and the remaining section banning “production” still presents an important argument, although the restaurants’ main challenge has now been overcome; Californian restaurants largely import all of their foie gras, thus the production bar will have a much smaller impact.

Can California regulate egg production under the Commerce Clause?

New standard for chickens

Seth Victor

Missouri Attorney General Chris Koster has filed a lawsuit in the Eastern District Court of California, asking the federal court to overturn a 2010 California law requiring the same standards for in-state chickens be applied to out-of-state chickens. In 2008, California passed Proposition 2, a ballot measure that increased the standards for egg-layers, providing that such chickens must have enough space to spread their wings without touching another chicken, and be able to stand up and lay down. Animal producers in California, however, complained that because they couldn’t stuff as many birds into the same space, they are at an economic disadvantage when competing with out-of-state producers selling in California. In response the state legislature passed a law requiring that all eggs sold in California be held to the same standards required under Proposition 2. The law will take effect in 2015. While California maintains that the additional law was enacted for health safety given the atrocious conditions of battery cages, Missouri counters that the law is an unlawful attempt to regulate conduct outside of California’s boarders, and an impermissible protection against out-of-state competition, both of which are in violation of the Commerce Clause.

Why the King Amendment is Hypocritical

Seth Victor

Recently Angelique Rivard explained some of the dangers inherent in Rep. Steve King’s amendment to H.R. 6083, the Farm Bill. What makes this amendment maddening is that Mr. King has cited law to support this measure that he would decry as the product of an overreaching government in almost any other circumstance. There is no doubt that Mr. King’s proposal is intended to end state protection for farmed animals; his website proudly declares that he hopes to terminate the efforts of animal rights groups, ensuring “that radical organizations like the Humane Society of the United States (HSUS) and PETA are prohibited from establishing a patchwork of restrictive state laws aimed at slowly suffocating production agriculture out of existence.”

King has hardly been the darling of animal rights before this foray, as Stephen Colbert nicely summarizes. Perhaps unsurprisingly, the Humane Society Legislative Fund and the Defenders of Wildlife Action Fund both gave him a 0% rating in 2012. This came after a 2010 statement at a National 4-H Conference that “the HSUS is run by vegetarians with an agenda whose goal is to take meat off everyone’s table in America.” King has also previously voted against broadening the definitions of the Endangered Species Act in 2005 which would have enabled better listing criteria.

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 complaint 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?

Foie Gras, with Hollande-aise Sauce

Seth Victor

Recently French President François Hollande pledged to fight California’s ban on foie gras. How he plans to do this, I am not sure, and the president himself has admitted that he cannot fight the law directly. Fearing that California’s legislation will encourage other states and, perhaps closer to home for the new leader, other EU countries to implement similar laws, he vows to use free trade treaties to continue to export this traditional French product while “bombard[ing] US political leaders with gifts of foie gras ‘for their own great enjoyment.'” How kind of him.

The Ban on Foie Gras

Elizabeth Rattner

          According to a California law set to go into effect in July, it looks as though fine-dining establishments across the state of California will no longer be offering foie gras on their menus. In July, California will become the first state to outlaw the production and sale of foie gras. For those of you unfamiliar with the specifics of foie gras (“fatty liver”), it is a delicacy that sells for around $50 per pound. Foie gras is produced when a metal tube is forced down a duck’s throat and into its gullet to feed enormous amounts of corn into the duck three times daily. This process causes the duck’s liver to expand up to ten times its natural size as the duck becomes grossly overweight.  According to many animal-rights activist groups, this is a cruel and inhumane practice (the ducks feel so much pressure that they tear out their own feathers and cannibalize each other, while many others die as a result of their organs exploding or from choking as they are force feed) and groups have been pressuring restaurants to stop serving foie gras for quite some time.

While California may be the first state to implement the law and apply a fine of up to $1,000 a day to restaurants that continue to offer foie gras, California is not the first state to consider the ban. In 2006 Chicago outlawed foie gras, yet the ban was lifted two years later when prominent chefs rebelled.

Sex, Animal Abuse, and the Internet

Seth Victor

In Long Island, New York last Tuesday,  the Suffolk County Legislature unanimously approved a bill, sponsored by legislator Jon Cooper, creating the nation’s first registry for people convicted of animal abuse. The online registry operates in a similar fashion to the online registration required for sex offenders under Megan’s Laws. Anyone convicted of animal cruelty will be required to submit and keep updated their name, address, and photograph to the publicly searchable database for five years following their conviction. Convicted abusers will have to pay $50 annually for the cost of the registry, and those who do not face a $1,000 fine and one year imprisonment.

Mr. Cooper is quoted stating, “We know the correlation between animal abuse and domestic violence…Almost every serial killer starts out by torturing animals, so in a strange sense we could end up protecting the lives of people.” In acknowledging the link between animal abuse and domestic violence, a relationship of which many people are not aware, Mr. Cooper illustrates how animal protection laws can serve both human and animal interests.

The Nuge is a Poacher

David Cassuto

Ted Nugent gets a real charge out of senseless violence against animals.  This is not news.  One need only tune in to his TV show to learn about his love of killing.  What is news is that Nugent broke the law while filming said show.  He killed underage deer using bait, both of which are illegal in California, where the show is filmed.  He was brought up on 11 charges and pled no contest to 2 in a plea deal.   

Pombo Relegated to the Ashheap of History

David Cassuto

Richard Pombo lost the  Republican primary for Congress in California´s Central Valley.  This is good news for animals everywhere.  During his 14 years in Congress (representing another district, which he lost in 2006), Pombo was an unmitigated disaster (not just for animals but for all things environmental).  During his chairmanship of the House Natural Resources Committee, Pombo blocked all kinds of wildlife protection, supported subsidies for the fur industry and advocated for the resumption of the ivory trade (more on the Pombo Hall of Shame here).   His campaign platform centered on the fact that if he were elected and the Republicans regained control of the House, his seniority would make him Chairman once more.   

Stevens Update — The Content-Based Restriction Debate Continues to Swirl

David Cassuto

Congress has introduced a new bill aimed at suppressing crush videos.  In the meantime, the Court will review another content-based law  — this one aimed at restricting violent video game sales to children.  One wonders how the Stevens precedent will figure into deciding whether this California law is constitutional.  More soon.

California Bill Proposes Animal Abuser Registry

David Cassuto

From the Hopeful Developments Desk: California State Senate Majority Leader Dean Florez has drafted a bill (with help from the ALDF) which will require people convicted of felony animal abuse to register with the state and provide a current photo, home address, place of employment and other information.  The law, if passed, will be funded by a small tax on pet food.

Florez, who also chairs the Food and Agriculture Committee, is counting on his credibility in the Ag world as well as bipartisan opposition to animal abuse to overcome the anti-tax backlash that inevitably accompanies any non-revenue neutral proposal.

We shall see.  More here and here.

California’s “Pet Responsibility Act”

The California Legislature is once again attempting to control pet overpopulation through proposed bill SB 250 “Pet Responsibility Act” which outlines how owners must sterilize their cats/dogs.  The bill also imposes a penalty for violating these sterilization guidelines except in specified circumstances.  Under SB 250, if certain conditions occur, pet owners can apply for a license to have pets that are not sterilized or “unaltered.”

Bullfights in….California?

One of the most vexing problems that animal advocates face is fighting animal cruelty that is justified by reference to religious traditions. David has written about the problem here. A not so well known instance where there is a clash between religion and cruelty is in California’s San Joaquin Valley, where the hot summer nights give way to a spectacle that many Americans don’t know takes place in their country: bullfighting. The fights are organized mainly by a community of Portuguese immigrants who claim that the bullfights are an integral part of their religious and cultural tradition. Why can such a cruel spectacle be conducted lawfully in California? Because the San Joaquín bullfights are bloodless! How can a bullfight be bloodless? The L.A. Times explains:

In 1957, California banned gory bullfights but did allow supporters — mostly Portuguese dairy farmers from the Azores, where the sport is popular and bloodless — to continue the tradition as long as the bull isn’t harmed or killed, and contests were staged in conjunction with religious festivals.

The Velcro adaptation – a bandarilha tipped not with razor-sharp darts but with nonlethal Velcro – was introduced in 1980 by Dennis Borba, an American-born matadorwhose father, Frank, was one of a few pioneering immigrants to revive the old-world spectacle in the 1960s.

Recently, animal advocates claimed that at least some bullfights are not really bloodless, as some 30 barbed banderillas were found at a bullfight in Los Angeles County. Harming bulls with real banderillas is, of course, unacceptable. Assuming, however, that the Velcro version of the banderilla is used, should the spectacle be banned anyway? Why or why not?

Luis Chiesa

The Continuing Impact of Proposition 2

In the wake of Prop 2, lawmakers in California have apparently been bitten by the animal protection bug.  Legislation is working its way through both chambers that would ban tail-docking of dairy cows, ban importation of eggs from out-of-state facilities that use unacceptable battery cages, abolish large-scale puppy mills, and increase the penalties for poaching wildlife.   There are also initiatives afoot in Maine and Ohio to ban veal and gestation crates and we may soon see a similar initiative in New York.  Full story here.

–David Cassuto

Kristof on Animal Rights

Yesterday’s New York Times featured an Op-Ed column by Nicholas Kristof on animal rights. The piece is titled “Humanity Even For Nonhumans”. Here’s an excerpt from the column:

“In recent years, the issue [of animal rights] has entered the mainstream, but even for those who accept that we should try to reduce the suffering of animals, the question remains where to draw lines. I eagerly pushed Mr. [Peter] Singer to find his boundaries. “Do you have any compunctions about swatting a cockroach?” I asked him.

“Not much,” he replied, citing reasons to doubt that insects are capable of much suffering. Mr. Singer is somewhat unsure about shellfish, although he mostly gives them the benefit of the doubt and tends to avoid eating them.

Free-range eggs don’t seem offensive to him, but there is the awkwardness that even wholesome egg-laying operations depend on the slaughtering of males, since a male chick is executed for every female allowed to survive and lay eggs.

I asked Mr. Singer how he would weigh human lives against animal lives, and he said that he wouldn’t favor executing a human to save any number of animals. But he added that he would be troubled by the idea of keeping one human alive by torturing 10,000 hogs to death.

These are vexing questions, and different people will answer them differently. For my part, I eat meat, but I would prefer that this practice not inflict gratuitous suffering.

Yet however we may answer these questions, there is one profound difference from past centuries: animal rights are now firmly on the mainstream ethical agenda.”

You can read the rest of the column  here.

– Luis Chiesa

Prop 2 and a Divided California

Today’s New York Times includes this article about a renewal of interest in a division of California into two states – coastal counties in one and inland counties in another. According to the Times article, this latest iteration of the state subdivision movement arises out of farmers’ angry responses to Proposition 2, a state ballot initiative passed by California voters in 2008.  Here’s how the Times describes Prop 2 (here):

Proposition 2 . . . banned tight confinement of egg-laying hens, veal calves and sows.  While many food activists and politicians in the state hailed the vote as proof of consumers’ increasing interest in where their food comes from, the proposition’s passage has angry farmers and their allies wanting to put the issue of succession to a vote, perhaps as soon as 2012.

The farmers interviewed for the article represent just some “farmers’ perspectives.” In pitting “farmers” against “food activists and politicians,” the story leaves out growers interested in organic farming and locally grown products.  There are farmers who want to reduce animal suffering.  The National Black Farmers Association, Institute for Agriculture and Trade Policy, Family Farm Defenders, and Farm Forward all supported Prop 2.  The Times story got sensationalists quotes (one farmer describes supporters of Prop 2 as “think[ing] fish are more important than people, that pigs are treated mean and chickens should run loose”), but the Times didn’t tell the whole story.  That’s because quotes from people who think that “chickens should run loose” don’t play into the historic (and romantic) American archetypes of the pioneer-farmer.

— Bridget Crawford

Taxing Veterinary Care

Interesting story on NPR (read and listen here) about Governor Schwarzenegger’s proposed plan to levy a 9% tax on veterinary care as part of an overall plan to close California’s $41 billion budget gap.  The proposal has raised concern that it will price veterinary care out of the reach of many Californians.  As a result, many animals will face abandonment or euthanization.  H.D. Palmer, of California’s Department of Finance noted that veterinary care is not being singled out; the state also plans to tax  auto and appliance repair, golf fees, sporting events and amusement parks such as Disneyland and Knots Berry Farm.

There is no denying that California’s budget crisis is real and that the state faces some hard choices.  Nonetheless, I look forward to the day when medical care for sentient, feeling creatures is not a line item comparable to greens fees or trips to Disneyland.

dnc

Egg Production in a Post Proposition 2 World

Will the passage of California’s Proposition 2 lead to an increase or decrease in egg production? The answer is not obvious. Some animal advocates contend that egg consumption will increase because the public will feel better about the way that egg-laying hens are treated in the post Prop 2 world. If this turns out to be the case, Proposition 2 will not meaningfully reduce animal suffering.  On the other hand, the spokesman for the California Farm Bureau Federation (CFBF) recently stated that “[t]he impact of Prop. 2 is pretty obvious…[w]ithin a few years, it will be impossible to find California eggs in stores.” If the CFBF is right, Proposition 2 will not only improve the conditions of confinement of egg-laying hens but also significantly reduce the amount of hens raised for egg production.  For the reasons that I fleshed out in my reply to Francione, I’m inclined to believe that egg consumption will not change significantly as a result of the passage of Proposition 2.  Who’s right? Only time will tell.

Luis Chiesa