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.”

Duck Liver, Bob Herbert and the Plight of the American Worker

Zoe Weil does a fine job taking Bob Herbert to task for his cavalier dismissal of the plight of the ducks at an upstate NY foie gras facility.  Herbert concerns himself with the exploitation of the workers at the facility — which is all to the good.  But he gratuitously dismisses the gruesome existence of the ducks imprisoned there — ignoring the obvious connection between cruelty to the workers and cruelty to the animals they work on.

–David Cassuto

Raising Duck Liver

D’Artagnan, Inc. has reluctantly agreed to stop claiming in its advertising that the ducks whose engorged livers are used in its foie gras are “hand-raised with tender care under the strictest of animal care standards.” They further have ceased saying that the ducks’ livers are “not diseased” but “simply enlarged.”  The company’s shift comes in response to a decision by the National Advertising Division of the Council of Better Business Bureaus, which concluded that the claim about the ducks’ livers was not adequately substantiated.  The NAD further concluded that the claim about the degree of care the animals receive “suggests a level of care and oversight that is not supported by the evidence provided by the advertiser and is inconsistent with the evidence in the record.”  Full story here.

This would all seem like a major coup — the self-regulating arm of the advertising industry smacks down the deceptive rhetoric of the duck liver trade.  The celebration pales, however, when one views the revised claims now found on the company’s website.  The statement that “The liver is not diseased, simply enlarged,”  now reads : “According to published research * (partially funded by animal welfare agencies), the liver is enlarged but not diseased.”  The tender care claims have been refashioned as well.  The company claims that: “The art of raising ducks and geese for foie gras combines a low-stress environment (birds experiencing stress produce very low quality foie gras), high-quality corn, clean water, and kind handling.”

Pyrrhic victory anyone?

David Cassuto

Update: This excellent piece on the Bocuse D’Or cooking competition (more or less the cooking Olympics) has a stark and thoughtful discussion on foie gras.  Well worth a read.