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.

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.

Top Chef — A Cultural Barometer

Matthew Blaisdell

A cultural studies major may find grounds for a thesis in following the treatment of vegetarianism in ‘Top Chef,’ which I’ve gotten roped into the last 2 seasons.  This season started on a typical meat-obsessive note, with the first contestant mockingly dismissed for attempting a seitan-stuffed pepper.  Even the thought seemed to make the judges ill.  Since then, a later-rounds competition was based on preparing a vegetarian meal (highlighting Natalie Portman’s celebrity advocacy) with the winner being the chef who most understood what vegetarians want–a meal as satisfying as a meat-dish, not just creatively prepared vegetables.     

More on Leiter’s Veganism Poll

Surprisingly, my recent post about Professor Leiter’s poll on “attitudes toward veganism”  seems to have sparked substantial interest among AnimalBlawg readers. Given the attention that the post has received, I want to keep readers updated on a couple of developments regarding this topic.

First, it seems that Professor Leiter was somewhat annoyed by AnimalBlawg readers and other animal advocates who decided to participate in the poll. Here’s what he had to say after some of us linked to his poll:

UPDATE: Unfortunately, some pro-vegan websites have now linked to this, thus skewing the results, at least for now.  I would encourage other law-related blogs to link, so that we can get a less skewed sample of opinion.  Thanks.

Regardless of whether animal advocates voted in sufficient amounts to significantly skew the poll results, it seems pretty obvious to me that most people (50%)  who follow Leiter’s blog believe that “[v]eganism is neither morally commendable nor morally wrong, but is a reasonable personal choice for some individuals to make”. This is probably an accurate reflection of what most law professors (and students) think about veganism. (On a side note, I’m curious to know what option Professor Leiter voted for).

Second, it looks like Professor Bainbridge also voted for the “veganism is a reasonable personal choice option”. Bainbridge explains his choice in the following manner:

Brian Leiter’s taking a poll of his readers on veganism. For lack of a better option, I chose “Veganism is neither morally commendable nor morally wrong, but is a reasonable personal choice for some individuals to make” as my answer. I’d qualify that statement, however, by noting that the attitude of moral superiority on the part of many vegans gets old real fast. Plus, the efforts by some vegans to turn the issue into a political one, using the state to regulate food choices (see, e.g., foie gras bans), needs to be resisted at every opportunity.

Professor Bainbridge raises two important points. Do animal advocates generally and vegans (and vegetarians) in particular display an “attitude of superiority” when they talk about their lifestyle and food regimen? I’m sure that some do, but it’s far from clear whether most or even “many” do so.

The other interesting point raised by Bainbridge is his suggestion that the animal advocate’s attempt to ban foie gras should be resisted. While Professor Bainbridge’s contention that the state should not regulate food choices is understandable as an abstract proposition given his conservative political views, it’s not clear why he takes issue with proposals to ban foie gras but has no problem with banning dog fighting in order to prevent animal cruelty. A couple of years ago, Professor Bainbridge defended his views by pointing out that:

(1) Because “the enduring truths of what Burke aptly called “original justice” are revealed slowly, with experience, over time”, conservatives are guided by tradition, experience and history,

(2) There is a long history of  opposition to dog fighting, as “England prohibited it and other blood sports as early as 1835” and “[t]here is a longstanding consensus in the Anglo-American tradition that blood sports are cruel and ought to be banned”.

(3) There is no tradition or long history of opposition to foie gras in this country.

(4) Therefore, the wisdom of tradition and history “justifies an infringement on human property rights” in the case of dog fighting, but doesn’t justify governmental intervention in the case of foie gras.

This strikes me as a particularly weak argument. After all, as Justice Oliver Wendell Holmes famously asserted in The Path of the Law, “[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV”.

Luis Chiesa

No Standing to Object to Foie Gras

New 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.