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Besides the sheer foolhardiness of the ban, I argue the lack of enforcement is due to the fact the foie gras law doesn’t provide a city or any other governmental unit in the state with any clear trigger that would precipitate enforcement under the ban.
Rob Black, the executive director of the Golden Gate Restaurant Association, tells me by email that he had not seen a copy of PETA's lawsuit but says “the ban has created a great deal of confusion about what is and is not covered under the law—from down feathers, to duck breasts to what constitutes ‘force feeding’ under the law.”
“I have no idea—and no reasonable way of knowing—how much food any of the ducks [my] products come from consumed during their lifetimes,” says Hot’s owner Sean Chaney, in a declaration filed in September on behalf of Hot’s Kitchen, that explains rather succinctly a central—and, I would argue, fatal—problem with the law. That is, the law impossibly requires sellers in California to know all of the conditions under which birds are raised in other states and countries.
PETA must know this. After all, the group included as an attachment to the lawsuit it filed this week this very declaration from Chaney.
Even the California state office in charge of defending the ban in court—in the lawsuit brought by Hot’s and others in July—admits the state isn’t paying much attention to how the foie gras ban is working in practice.
Lydia Gledhill, a spokeswoman for California Attorney General Kamala Harris, the state’s top lawyer, told Reuters that her office “wasn't formally tracking the law's enforcement.”
While I find the foie gras ban to be illegal as currently written, if the California legislature had intended to prohibit restaurants from giving away foie gras, it could have done so and the law would be no more illegal than it currently is. But the legislature did not do that. Likewise, if the legislature had intended to ban the consumption of foie gras—which even PETA acknowledges in its lawsuit is not the purpose of the law—it could have done so. But it did not.
I’m confident that the foolish and unconstitutional foie gras ban that California legislators passed will remain on the books for just a little while longer. No lawsuit in support of the ban—by PETA or anyone else—will change that fact. Instead, this lawsuit, like any others, may just hasten the law's rightful defeat.