Overturn California's Foie Gras Ban

Foie gras producers and sellers fight back against an unconstitutional state law.

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.

Others agree.

“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.)

Five years ago this very week I wrote an article about the sheer inanity of Chicago’s foie gras ban, the first ban to take effect in this country. It was around that time that Chef Didier Durand of Cyrano’s in Chicago (who currently serves as Keep Food Legal’s board chairman) coined the term “duck-easy” to describe the underground meals served in his and other restaurants in the city to protest and fight back against the law.

With California chefs launching their own underground foie gras dinners and otherwise providing foie gras to paying customers even after the law took effect, it would have been easy to let the state’s ban stand in the face of little or no enforcement. As the popularity of such dinners has shown, there’s something exciting about dining on such forbidden fruits.

But there’s also something very obviously absurd about banning a food. It’s notable that both Gov. Schwarzenegger and then-Chicago Mayor Richard Daley used the same word—“silly”—to refer to the foie gras laws in their respective jurisdictions. (While Schwarzenegger was complicit in signing the bird feeding bill into law, Daley deserves credit for vocally opposing and supporting the successful repeal of his city’s foie gras ban.)

But the idea of banning the production and sale of foie gras is more than just silly. California’s lone foie gras producer Guillermo Gonzalez of Sonoma Artisan Foie Gras—a former Keep Food Legal board member—is no longer producing foie gras in California. His family business of more than two decades teeters on the edge.

That's not silly. It's an outrage.

Silly laws like the “foie gras ban” have real victims. Let’s hope this lawsuit forces California legislators and their counterparts around the country to learn that lesson.

Baylen J. Linnekin, a lawyer, is executive director of Keep Food Legal, a Washington, D.C. nonprofit that advocates in favor of food freedom—the right to grow, raise, produce, buy, sell, share, cook, eat, and drink the foods of our own choosing.

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  • Ted S.||

    First!

  • Bitter Taxpayer||

    California is beyond help. The only way to "fight back" is to leave.

  • ||

    We could also invade.

  • fried wylie||

    If you're a californian, you have to leave first before you can re-invade.

  • ||

    Not necessarily. The collapse is already happening from within.We need people on the inside.

  • fried wylie||

    I'm talkin WW2-propaganda, big-arrows bridging portions of the map, sort of invasion.

    For those, the invaders have to begin from the non-pointy part of the arrow.

    lrn2strategy, noob.

  • ||

    Get out and get in again? Seems inefficient, that's all. But what do I care since I don't live there. Ok, let's do it your way. I'll drive!

  • General Butt Naked||

    Seems inefficient...

    It's the California way!

    Viva California!

  • Scarecrow Repair||

    Considering the cause, it's quite appropriate to emulate the Resistance which helped the Normandy invasions.

  • Suellington||

    Fuck that, I ain't leaving anytime soon. Born in SF and would rather fight the daily battles against the brain dead proggies, most of of whom are not natives.

  • ||

    Fuck them leaving. All they do is spread like locusts to the next state, passing all of the same laws that suffocated California in the first place, never realizing those laws are what made it so shitty.

    Honestly, how can people be so miserable and hate life so much when they live in one of the most naturally beautiful and friendliest climates of all 50 states?

  • wareagle||

    ^^^this has a good deal of anecdotal evidence to back it up. It's as though they forget the reasons that they left CA in the first place.

  • SusanM||

    If you've ever run into a British person, it's the same sad story. I know a few who left old Blighty because of the shitty situation there and then complain that the US should do the same stupid things.

  • Nyarlathotep||

    Eat what thou wilt shall be the whole of the law!

  • ||

    I'm still waiting for non-pinko California areas to secede and establish the Commonwealth of California.

  • Doubting Thomas||

    Are you? Really?

  • ||

    Yes.

  • Doubting Thomas||

    You too? How long are you prepared to wait? As long as it takes?

  • WWNGD?||

    The two minority disabled riders of the high speed rail have demanded foie gras for religious purposes.

  • Pi Guy||

    It's for the munchies they get after shopping at one of the three still-standing fully CA state-sanctioned MMJ dispenaries left in operation. For now.

  • Sevo||

    And since you can only catch abalone for your own use, I'm surprised there hasn't been an ADA lawsuit over the matter.

  • SIV||

    What do you expect from a state which essentially outlawed trapping?

  • SIV||

    First they came for the bath salts...

    I know they already came for the mushrooms.

  • General Butt Naked||

    What kind of asshole shoots himself with a .22? Additionally, what kind of asshole shoots himself on mushrooms?

  • R||

    A really stupid one?

  • sloopyinca||

    OT: NYT Op-Ed says men should have to pay alimony for women that they impregnated during the pregnancy.

    Question: if they are forced to pay it and the woman decides to terminate the pregnancy, a decision the father is barred from making, is he due a refund?

    Child support laws are fucked up enough. This will just heap the stupid on them even more.

  • sloopyinca||

    Comment with the most "thumbs up's":

    MoiraOhio
    FLAG
    Men who don't want to have the responsibility of fathering children need to get a vasectomy. You don't want to be a daddy? Do something about it. Quit blaming women - you're responsible for your little swimmers.
    July 7, 2012 at 4:48 a.m.RECOMMENDED10

    The typical NYT reader rears her ugly head.

  • Brett L||

    Women who don't want to get pregnant should have a tubal ligation, right?

  • Bitter Taxpayer||

    Or keep their legs together when the menfolk come sniffing around.

  • wareagle||

    unfortunately, that passes for logic too often. It's as though some folks fail to grasp that input is required from TWO people in order to create a child. And what happened to great condom craze that was supposed to prevent the parade of horribles that would occur without them?

  • Brett L||

    Fuck the NYT with a rusty chainsaw. Women are not wilting violets who are impregnated against their will. Fucking leads to pregnancy.

  • Brett L||

    My favorite comments are the ones that see this as a stalking horse for foetal personhood. It just keeps on giving.

  • sloopyinca||

    I don't know the Op-Ed writer, so they may be right. Either way, they totally gloss over women that tell a man they are on the pill and can't get knocked up. It's like their feminist beliefs tell them that women are just dumb cum dumpsters that don't have free will and are forced to succumb to any desire of a man and have never, ever deceived a man into impregnating them.

    There aren't many men out there that would ever force a woman into having sex solely to get them pregnant. The same thing cannot be said of many women. Hell, it's been the source subject of many movies, books and TV plots.

  • VG Zaytsev||

    It's like their feminist beliefs tell them that women are just dumb cum dumpsters that don't have free will and are forced to succumb to any desire of a man...

    How do they square that with their belief that women are superior to men in every way?

  • wareagle||

    VG,
    that's the beauty of feminism - the man is always wrong, the woman is always the victim.

  • ||

    I will never understand feminist paternalism towards other women.

  • Major Johnson||

    While I don't agree with the premise of the law I can't see how it's unconstitutional. It would be unconstitutional in my opinion for the federal government to pass this law, but not for a state. All rights not delegated to the federal government are delegated to the states (first) and the people of those states (second). Thus since this is not within the power of control of the federal government it falls to the states to decide whether to allow those rights to their citizens. The state could not restrict the interstate commerce of these but could certainly say you can't sell them inside the borders of the state. If there is something in the state constitution that would preclude such a law it would be unconstitutional, but that doesn't seem to be the argument here.

  • robc||

    The powers not delegated to the United States by the Constitution, nor
    prohibited by it to the States, are reserved to the States respectively, or to
    the people.

    1. Powers, not rights. States dont have rights. Only individuals have rights.

    2. Interpretation is open, so Im not saying your wrong, but I dont think the "first" and "second" is right. I think its some powers go to the states, some to the people. They just werent going to say in detail which were which ... which might functional mean the same as what you said.

  • robc||

    your==you're

    Sigh.

  • robc||

    While I don't agree with the premise of the law I can't see how it's unconstitutional.

    And that is a roundabout way of answering this. It is unconstitutional because purchasing of foie gras is a power reserved to the people.

  • robc||

    Ugh...not doing anything easily this morning...and this is made clear via the text of the 9th amendment:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    In this case, rights really are involved. Foie gras falls into those nonenumerated rights that are neither denied nor disparaged.

  • Night Elf Mohawk||

    What about the right to navigate your vehicle at the speed you like?

  • sloopyinca||

    Is there a law against doing so on private property? Are these restaurants private or public property?

  • Mr. FIFY||

    Anti-smoking fascists view ALL property as "public" property, sloop.

    /gentle reminder

  • VG Zaytsev||

    It may be unconstitutional because it is unenforceably vague.

  • ||

    States have their own constitutions, so it's completely reasonable to say something could be unconstitutional. Now I'd be willing to bet that the California constitution doesn't have a food amendment, but I'm sure some enterprising lawyer could figure out a way to argue it.

  • Mike Laursen||

    I dunno. Duck-easy sounds like it would taste even better than legal foie head.

  • Mike Laursen||

    I dunno. Duck-easy sounds like it would taste even better than legal foie gras.

  • Rubber Nipple Salesman||

    Maybe Cali needs to ease into this. Medical foie-gras anyone?

  • Mr. FIFY||

    This is just as pointless as indoor-smoking bans and Nanny Bloomberg's Soda Jihad.

    None of these actions are done to make society better... they are only done to help meddling "experts" known as politicians, gain and hold more power.

    Period.

  • ThatSkepticGuy||

    "Foie gras is raw milk is soda is Happy Meals"

    One of these things is not like the other, one of these just doesn't belong.

    There's a world of difference between the government saying, "You can't sell this product because too much of it can make you fat", and, "you can't sell this product because there's a high risk of contamination from germs because idiot hippies and naturopaths don't believe in them".

  • Banjos||

    So in other words:

    "You cannot sell this product because we believe it is bad for you."
    vs.
    "You cannot sell this product because we believe it is bad for you."

    You have an odd definition of the word "world".

  • sloopyinca||

    I'm still trying to figure out which one of these things does not belong, because for the life of me I cannot determine which one is not an exchange of goods for an agreed-to sum between consenting parties.

    Fuck off, slaver.

  • sloopyinca||

    TSG is right. I had to step over the dead bodies of three hippies this morning to buy my raw milk at the Farmers Market. Last weekend it was 6, so we're at least making progress.

    -or-

    high risk of contamination from germs

    [citation required]

  • Mr. FIFY||

    It's a wonder humanity ever survived, drinking raw milk all those centuries.

  • sloopyinca||

    "Cows have only been domesticated for the last eight thousand years. Before that, they were running around mad as lorries. The human digestive system hasn't got used to dairy products yet."

  • Another Phil||

    Humanity, collectively, survived lots of terrible illnesses. Before pasteurization, lots of people got sick from drinking raw milk. There have been recent outbreaks of Mycobacteria infections in Texas due to people eating soft cheeses from Mexico made from raw milk. You should be free to ingest all the filth cows live in if that's what you want, you just don't get to claim that it's not risky behavior.

  • sloopyinca||

    A google search of "Mycobacteria outbreak raw milk" brings up jack shit except for a CDC site saying it is dangerous (without citing a single case or even a footnote) and a FDA webpage that claims (without footnotes) that 3 deaths can be attributed to raw milk in the last 23 years.

    Conversely, 4 deaths a year are attributed to pasteurized and homogenized milk, according to the Mount Sinai School Of Medicine in New York.

    That means 30x as many death are attributed to pasteurized and homogenized milk over a 23 year period. I'll keep drinking raw milk from a dairy until I get my own cow in a couple of months.

  • Mr. FIFY||

    Four deaths a year??

    Obviously, we need to ban the sale of ALL milk, pasteurized or not.

    "For the children."

  • Moo||

    CDFA Announces Recall Of Raw Milk Products At Organic Pastures Of Fresno County - 10 Illnesses

  • sloopyinca||

    Oooooooh, that's scary!

    10 whole people out of the thousands that buy their products regularly. And a few of them actually got sick for a day or two!

    I'll keep drinking my milk from Organic Pastures. I've been doing it for a year now and have two half-gallons in the fridge as we speak.

    By the way, Dole's lettuce recall earlier this year involved more cases or reported illness, but you don't see people clamoring for a ban on mass produced romaine lettuce, do you?

  • Ray||

    Amusingly, the people who have strong opinions either in favor or opposed to banning foie gras are presumably both are overwhelmingly Democratic and tend to live in the exact same areas.

  • ||

    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 http://www.ceinturesfr.com/cei.....-c-11.html 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

  • jason||

    After all reading this article only thing a man can understand is that, the need to change the law with effective manners, hope our political class will think about it.

  • Jesrad||

    As a french citizen, amateur of good cuisine, decent cook and having had the opportunity to feed and rise geese, I'd like to point out that 'foie gras' occurs naturally outside of human intervention - and thus cannot be outlawed. IIRC the first traces of this awesome and very healthy delicacy go back to ancient Egypt, where and when some Nile dwellers hunting wild geese that were overfeeding all on themselves to prepare for long migrations, discovered by accident.

    Anyone who has fed domestic geese knows that you don't need to "force" the birds to feed. They literally try to run you down and enthusiastically gorge on the feed. For that reason, one should never task children of feeding the birds, lest they get knocked over, trampled and attacked out of voracity.

    So the text of the law strikes me as absurd and inapplicable. "Normal" liver size doesn't really exclude fatty livers, and no "force" is necessary in feeding the birds to reach that state anyway.

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