This past Sunday saw the beginning of statewide “enforcement” of California's “foie gras ban.” I put the word “enforcement” in quotes because—just as advocates like me had predicted—the law is so vague and was so poorly written that it would be impossible to enforce.
That fact became more and more evident as Sunday loomed, with those who might have been expected to enforce the law appearing united in their disinterest in doing anything of the sort.
As for the term “foie gras ban,” this law—signed in 2004 by former Gov. Arnold Schwarzenegger and enacted in 2005 with a built-in seven-year delay before the law would take effect—is and has always been a patently silly misnomer.
Why? Perhaps most obviously, the law does not “ban” or even once mention “foie gras.” Look for yourself at the “Bird Feeding Law” (the official name of the “foie gras ban”).
But that is just one of many incredible holes in the law.
It does not ban gavage (the French term for forcefeeding a bird) but instead states that a “person may not force feed a bird for the purpose of enlarging the bird’s liver beyond normal size” or sell a product that “is the result of force feeding a bird for the purpose of enlarging the bird’s liver beyond normal size.”
Not only does the law leave entirely undefined the term “normal size,” it requires that California officials and every seller or re-seller of foie gras in the state (like grocers or restaurateurs) know at all times the “purpose” of every feeding that took place during a bird’s life. And it leaves open the question of whether it would be permissible to forcefeed a bird for the purpose of producing fatty duck breasts, duck fat, duck feathers, and other products of forcefed birds.
The law defines “agricultural practices” subject to enforcement as “raising and selling force fed birds.” But the law then goes on to require that producers engaging in such agricultural practices not alter these agricultural practices but instead “modify their business practices”—a term that the law leaves undefined. It would be difficult to find a producer (or indeed any business) that had not changed in even the slightest fashion its business practices over the past seven years (when the law went on the books)—hence theoretically bringing all foie gras producers (and hence all foie gras) into technical compliance with the law.
These and other fatal defects in the particulars of the law raise larger constitutional questions. Among these issues are due process rights, California’s power (or lack thereof) to regulate interstate and foreign trade under the Commerce Clause, the Supremacy Clause, and federal preemption.
In my capacity as executive director of Keep Food Legal, I’ve met and spoken with, advised, and prodded many of the key producers, sellers, restaurateurs, interest groups, and others over the past year to ensure that a lawsuit challenging the ban would occur.
So I took it as welcome if unsurprising news when, this past Monday—just one day after the law took effect—three plaintiffs sued the state of California, seeking to overturn the law with what appears to be a vigorous challenge. The lead plaintiff, the Association of Duck and Bird Breeders of Quebec, a Canadian nonprofit that represents producers located in the French-speaking province, is joined in the suit by co-plaintiffs Hudson Valley Foie Gras, a New York producer (the largest in this country), and Hot’s Kitchen, a Los Angeles restaurant.
“I trust that the federal courts will recognize that, in its attempt to tell a farmer in New York or Canada how much he may feed his ducks, the California ban has gone too far,” the Los Angeles-based attorney for the plaintiffs, Michael Tenenbaum, wrote in an email to me earlier this week.
One issue the complaint does not raise, but that I would hope will be raised here and elsewhere (as the Farm to Consumer Legal Defense Fund did in a Wisconsin raw-milk case last year) is the issue of food freedom. Simply put, people have a right to grow, raise, produce, buy, sell, share, cook, eat, and drink the food of their own choosing. Foie gras is raw milk is soda is Happy Meals. The issue is the same, even if the name of the food is not. And neither California nor any other city or state—nor the federal government, for that matter—has the constitutional authority to traipse over an individual’s right to make his or her own food choices.
“This is definitely a food freedom issue that needs to be litigated,” said Jeff Dermer, a California lawyer who is familiar with the Bird Feeding Law but who is not representing any of the parties, in an email to me after news broke of the lawsuit. (Dermer was featured in a Reason.tv video on food trucks earlier this year.)