Foie Gras Ban Struck Down In California

220px-Foie_gras_DSC00180Foiegras4Another food ban has been struck down by a court. District Court Judge Stephen Wilson struck down the two-year state California state prohibition on foie gras as a violation of interstate commerce. The court issued its final decision on January 7th in Ass’n des Eleveurs de Canards et D’oies du Quebec v. Harris and found that the state law is trumped by the federal Poultry Products Inspections Act. Wilson acknowledged that there are few people in the middle of this debate: “This action for declaratory and injunctive relief touches upon a topic impacting gourmands’ stomachs and animal rights activists’ hearts: foie gras.”

The lower court’s earlier denial of a preliminary injunction sought by the plaintiffs was upheld by the the United States Court of Appeals for the Ninth Circuit in Ass’n des Eleveurs de Canards et D’oies du Quebec v. Harris, 729 F.3d 937 (9th Cir. 2014). The result is relatively rare. Usually when you lose a preliminary injunction fight before both the district and appellate courts, the outcome is clear since the courts have found that you are not likely to prevail on the merits. (The state also lost in arguing that the lawsuit was barred under the Eleventh Amendment).

The appellate court described the process at issue:

Hudson Valley and the Canadian Farmers raise Moulard ducks. Moulard ducks are a hybrid of Muscovy male ducks and Pekin female ducks. They are bred for their capacity of ingestion and fat storage in their livers. In addition to foie gras, Hudson Valley and the Canadian Farmers produce and sell breasts, legs, fat, bones, offal, and feathers from their Moulard ducks.

Generally, Moulard ducks are raised for foie gras through the following process. The Canadian Farmers and Hudson Valley take one-day-old ducks from the hatchery to breeding farms. There, the ducks are raised until they are fully grown, a process that generally takes eleven to thirteen weeks. For the first four weeks of their lives, the ducks eat pellets from feeding pans that are available to them twenty-four hours a day. In the next stage, which lasts one to two months, the ducks eat different pellets from feeding pans that are available to them twenty-four hours a day. For the next two weeks, the ducks continue to eat pellets from feeding pans that are available to them at only certain times during the day. In the final stage, called gavage, which lasts between ten to thirteen days, the ducks are hand-fed by feeders who use “a tube to deliver the feed to the crop sac at the base of the duck’s esophagus.”

Many people view this process as cruel and do not eat foie gras. The state took it one step further in barring anyone from selling the product. Section 25982 of the Health Code is entitled “Force Fed Birds.” Cal. Health & Safety Code §§ 25980 et seq. It states: “A product may not be sold in California if it is the result of force feeding a bird for the purpose of enlarging the bird’s liver beyond normal size.” Section 25981 further provides that “A person may not force feed a bird for the purpose of enlarging the bird’s liver beyond normal size, or hire another person to do so.”

Wilson said that the law was a clever way of regulating commerce in contravention to the federal regulation: “California cannot regulate foie gras products’ ingredients by creatively phrasing its law in terms of the manner in which those ingredients were produced.”

The court’s point is a compelling one but the state has a good-faith argument. The Poultry Products Inspection Act, regulates the distribution and sale of poultry and forbids states from imposing regulations on “labeling, packaging, or ingredient requirements” which would conflict with the federal regulations. Wilson struck down the law because he deemed a force-fed bird’s liver is an “ingredient.” The state argued that it was banning the process by which the product was made, not the ingredient. That would seem to fit within a state’s right to address animal cruelty and public health. The opinion below contains an interesting analysis of the impact of the Supreme Court ruling in National Meat Association v. Harris on the interpretive question. The court admits that it is a close question:

National Meat’s application to this case is far from clear. On its face, the California ban on sales of meat from nonambulatory pigs appears analogous to California’s ban on sales of foie gras from force-fed birds. Additionally, the need to prevent states from avoiding preemption via strategic legislative drafting applies with equal force to § 25982. Thus, if the non ambulatory pig sales ban is preempted by the FMIA then § 25982 should also be preempted by the analogous PPIA.

However, the Court’s functional approach to statutory construction suggests that § 25982 should be understood as a ban on force-feeding birds rather than as a sales ban. Under this reading, Defendant might be correct that § 25982 does not impose an ingredient requirement because it regulates a process. If so, then § 25982 would not be preempted.

However, this result would turn the Supreme Court’s reasoning on its head: Instead of hindering crafty draftsmanship, this analysis would use a functional approach to enable states to creatively avoid preemption. Under this analysis, any state would be able to avoid preemption of ingredient and labeling requirements by purporting to regulate the process of producing an ingredient rather than directly regulating the ingredient’s use.

A very interesting ruling, but the upshot is that people will be able to debate it over foie gras again in state restaurants.

Here is the opinion: Fois Gras ruling

25 thoughts on “Foie Gras Ban Struck Down In California”

  1. I was given a taste of foie gras by a friend. She insisted, I did and am now a devotee. I have a book on foie gras, it’s history and current process in great detail. The animals who are fed by tube are fed by the same man, every time. They are, in France, treated well. France has many laws about food and are proud of what they produce. The foie gras being raised in Oregon was following those customs, hopefully they are still in business There are 200+ official cheeses.

    There are many chefs in America who insist on using the whole animal. If you are going to kill an animal, don’t waste it. I will taste almost anything, but no more if I don’t care for it. I’ve had escargots and don’t think the’re worth the money, it’s mostly garlic, butter, and parsley, which is good on anything.

    Chicken liver pate is available in most delis. If you’ve never had fries coked in duck fat you are missing a treat. Eggs fried in duck fat are delicious. Duck fat rubbed all over turkey, roast, etc., better than butter.

    Issac, for me, Sancerre.

  2. Michaelb

    Most vegetarians start out eating sausages, or hot dogs.

    He was a vegetarian at the end, when things were not going so well. It was due to his upset stomach. A lot of German stomachs were upset at the time. Speer, mentions in his autobiography that dinners in the last year with Hitler consisted of cabbage and boiled potatoes. Those that asked for meat, ticked off Hitler, probably because he couldn’t eat it anymore. The cuisine was probably not the only reason one did not wish to be a guest at the table.

  3. I personally have no strong opinion one way or the other about all these animals organs or whatever, though imho free range meat tastes better, I just think that it’s kind of ridiculous that the government is getting so involved in such silly and frivolous things, I mean I know california has a habit of stupid laws like making my lawnmower and lawn chairs illegal, but this is a bit much

  4. Hitler was a vegetarian. It is said that when he invited people to dinner, they used to try and get out of it. The stories of plates of boiled potatoes and cabbage were the jokes going around, carefully.

    A good Sauterne and foie gras on toast, anytime.

    1. Hitler was not a vegetarian. Unless you are one of those vegetarians that eat fish and chickens. Hitler loved bravarian sausages. He likely ate less meat than most Germans at that time under Doctors orders.

  5. Michaelb – that would indeed be relevant. Perhaps it is unstressful if skillfully done, but cruel if not properly done.

    Personally, I would not buy products from an animal that was force-fed or not allowed to move.

  6. A benefit of keeping my own hens is that I know exactly how they’re raised. They live in the Cluck-ma-hal with a huge run, get let out to range in the backyard with a couple of my dogs to guard them from coyotes several times a week, and only eat organic layer feed and organic food scraps, plus whatever bugs they can glean. Their eggs are healthy, fresh, and delicious.

    Unfortunately, I am apparently incapable of raising chickens for meat. I end up naming them, and they come when I call them, so all I use them for is eggs, and they die of natural causes. I can’t make friends with a creature, get it to trust me, and then eat it. (Well, I probably could if it was one of those homicidal bulls from yesterday’s story.) I couldn’t do this if I was selling eggs for a living, because I spend money to feed those old enough to slow or go out of egg production, just like any pet.

    Meat labeled “free range” doesn’t mean raised in wide open pastures. Legally, they have access to the outdoors, and I think the minimum is one square foot of space. I could be wrong about the amount of space, but it isn’t much. It’s very true that commercial meat poultry has been bred to have such absurdly large breasts and fast growth rates, that they have to be killed young because they won’t be able to walk as adults. That holds true for turkeys, too. If you buy a heritage breed, it will have more taste than we’re used to, but “real” turkey tastes delicious. Commercial egg layers are debeaked, and live in battery cages. They are given antibiotics to fight the disease that can sweep through a factory like wildfire. They have a very high rate of lay, and are all culled after one year.

    I try to buy chicken from a good supplier, but I can’t always get down there. I know full well the “organic” chicken I otherwise buy probably never saw a leafy green or bug in its short life, and was crammed in with other birds with their beaks cut off.

    I have never tried foie gras because “meat butter” sounds gross, and I don’t want to buy something from a bird that was force fed. Fans say it tastes divine. On the other hand, I listened to Handell On the Law yesterday, where this debate raged. Handell said that he visited a foie gras farm, and witnessed gavage on geese. He said they lack a gag reflex, and that none of the geese reacted to the gavage. They didn’t struggle or try to get away, but acted like they didn’t care.

    I was really surprised to hear that. I suppose it is possible that, even though ducklings forage from hatch, and are not fed by their parents like songbirds, they might have a reflex that allows a mother bird to shove food way down the gullet of baby birds. (I want to gag myself watching birds feed their chicks.)

    I am also very curious about Isaac’s anecdote of a method of producing foie gras in France without the gavage. It is true that small farmers free range their poultry in France. That might be a solution.

    For it to qualify as animal cruelty, the animal has to suffer. If the animal truly doesn’t suffer, then this is an item where people could vote with their dollars. If they don’t support force fed poultry, don’t buy it and get the word out to others. If, however, the birds actually do suffer, then this does fall under animal cruelty laws.

  7. As pointed out above, there are humane ways to fatten the liver. The force feeding saves money.Some point out that the ducks want the tube. What they are not told is that is the only food they will get. Hunger is a fierce motivator. I do not eat animal products and do not anticipate a overwhelming number of people to join me soon. However, I do expect that the average person does not want unnecessary cruelty to be part of the diet. This is a luxury item and not a staple in any diet.

  8. slohrrs, I had an old and wise doctor tell me one of the main reasons people in the US have an almost epidemic Vitamin D deficiency is because the boomer generation stopped eating organ meats. For prior generations, organ meat was a regular part of the diet. It is a superb source of Vitamin D.

  9. You can tell where libertarianism is needed badly by the jurisdictions that try to control what we eat. Chicago tried this foie gras ban as well and had it stuck up another orifice, as it were.

  10. tomocooper

    For what it’s worth, when I lived in France for many years, many years ago, there were plenty of French who were against the forced feeding of geese, or any of the other forced conditions implemented to obtain this or that delicacy. I was introduced to foie gras from free range geese that were kept in large penned areas with trees, shrubs, and other natural like surroundings. The farmers simply chucked in an unlimited supply of chestnuts, and other foods the geese could not get enough of and they went at it. The livers swelled to the same size as those force fed and on top of all that, the foie gras tasted somewhat better, more depth in flavor. For the rest, one either accepts the noshing off ones fellow animals or one doesn’t. The problem comes when a kid names the pork roast to come. I remember sitting down to a dinner of ‘Napoleon’ and being told not to talk history with the kids.

  11. Thank-you for posting the case and the above comments. The more people are made aware of farmed animal cruelty, the more people will naturally refuse to pay for the products of cruelty.

  12. JT, now I’m drooling over a peking duck meal. That’s right. Served in those pancake rolls with plum sauce and scallions. Yummy. The upshot, is about $20 dollars for a takeout order.

  13. Although I am not personally tempted to eat this, I am concerned about government intrusion.

  14. The swolling of a goose liver is actually a naturally occuring event (if not manipulated by the farmer). This condition was discovered hundreds of years ago and replicated in domestication. How is it so different from raising other animals for food?
    Chickens with breast so large they cannot stand, sows that are not permitted to turn intheir pens during gestation, turkeys with beaks trimmed off so they will not damage each other in close quarters…

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