California’s Unconstitutional Foie Gras Crackdown

In addition to its constitutional flaws, California’s foie gras ban is unenforceable. A flurry of lawsuits by animal rights groups is making this fact more and more clear.

Earlier this month the U.S. Court of Appeals for the 9th Circuit, a federal court in California, heard arguments in the case of Association Des Eleveurs De Canards Et D’Oies Du Quebec v. Harris. That case pits foie gras producers and sellers against the state of California, which has barred the plaintiffs and others from selling foie gras in the state under a law that went into effect there last summer.

The plaintiffs originally sued the state in U.S. District Court on July 2, the day after the ban took effect. In their suit, they sought to overturn the ban as unconstitutionally vague, as in violation of the Dormant Commerce Clause, and as void because it’s preempted by federal law. On each of these counts the plaintiffs are correct. They also sought to enjoin the state from enforcing the ban while the suit made its way through the courts.

In September 2012, Judge Stephen V. Wilson rejected the injunction requests. Judge Wilson based his ruling on his belief that an injunction would be inappropriate because the plaintiffs’ vagueness, Dormant Commerce Clause, and preemption arguments are “unlikely to succeed on the merits.”

The plaintiffs, who will see about that, appealed Judge Wilson’s ruling to the 9th Circuit, which heard arguments in the case earlier this month.

Even as the principal case against the state proceeds, a swirl of litigation tangential to the ban has also swept across California.

Some of this is based on the fact that California restaurants have continued to serve foie gras to customers without selling it—offering a free portion to loyal regulars, for example. While giving foie gras away is an act clearly in compliance with the law, that hasn’t stopped some animal-rights groups from targeting these restaurants with what critics paint as nuisance lawsuits.

In December 2012, I wrote a column about what appears to be the first of these lawsuits. I described my opinions about the merits of the suit, launched by animal rights group PETA against Hot’s Kitchen, a Los Angeles-area restaurant that sold a burger that comes with free side of foie gras. That case is still ongoing, with a hearing scheduled for next month.

I argued at the time that PETA’s lawsuit against Hot’s Kitchen was evidence of a last-ditch effort that might in fact herald the end of the ban. I’m even more confident now that that is in fact the case.

Why? Look at what’s happened since.

In March, Katherine Mangu-Ward blogged about two separate lawsuits filed against Napa chef Ken Frank, who says he gives away foie gras every day in protest of the state ban on selling it.

A judge dismissed the first suit against Frank, filed against him by a group called the Animal Protection and Rescue League (APRL), and ordered APRL to pay Frank’s attorney fees. Then, in March, the Animal Legal Defense Fund (ALDF) also sued Frank for allegedly selling foie gras.

The ALDF also recently sued the USDA, also in U.S. District Court in California, seeking a federal ban on foie gras. Judge Otto D. Wright II, in a March decision, rejected that argument and dismissed the case with prejudice.

“Plaintiffs merely seek to persuade the USDA to conclude that all force-fed foie gras, by definition, are adulterated and diseased,” Judge Wright wrote in his decision. “[T]he USDA reaffirms that it is not.”

The next month, a judge ruled in a separate ALDF lawsuit against Hudson Valley Foie Gras. In that case, the ALDF alleged that the company’s claim that its foie gras is “the humane choice” violated federal and California laws against unfair competition and false advertising.

Judge William Aslup granted Hudson Valley’s request to dismiss the ALDF suit in part and denied it in part. He held that the issue of whether a product may be marketed as “humane” could theoretically give rise to a claim of false advertising.

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  • Fist of Etiquette||

    While giving foie gras away is an act clearly in compliance with the law, that hasn’t stopped some animal-rights groups from targeting these restaurants with what critics paint as nuisance lawsuits.

    Since when has the law been a necessity in civil suits? But thank Gaia someone is thinking of the ducks or whatever birds we're talking about here.

  • Ted S.||

    Since when has the law been a necessity in civil suits?

    I think the law in question is the "Fuck you, that's why" law.

  • juris imprudent||

    Plaintiff: [screaming at the top of their lungs] The law isn't stopping them from OFFENDING MEEEEeeeeeeeee!

  • ||

    ...trailing into the distance as the plaintiff is launched from the "dismissal with prejudice" catapult every courthouse should have these days...

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  • jdgalt||

    Lovely SPAM, wonderful SPAM....

  • RBS||

    If I was judge and someone filed a lawsuit in my court that was incredibly similar to one that was just dismissed with prejudice and the plaintiff forced to pay their opponents fee's I would sanction the hell out of the second attorney.

  • ||

    Unless it was the same person or group bringing both lawsuits, you'd probably be facing sanctions yourself, if you did that as a judge.

  • ||

    Apparently those "enlightened" folks that wrote this prohibition have never actually tasted foie gras.

  • AlmightyJB||

    What's it taste like?

  • Sevo||

    It doesn't taste like chicken.

  • jester||

    It's really fantastic. It's too bad that it isn't available in every grocery store in America for everyone to try and either accept or reject as a consumer product.

  • SugarFree||

    Smokey butter.

  • ||

    They go nuts for it in France during the holidays. I could never get into it.

    Don't like duck or rabbit.

    Duck season! Rabbit season!

  • zafina502||

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  • Warrren||

    That's another of Warty's gay fetish porn names.

  • Sevo||

    "Smokey butter."
    That's not bad, but there's a certain 'sharpness' or 'piquancy' to it.

  • AlmightyJB||

    That sounds pretty awesome. I will have to try.

  • rxc||

    Very good description. I have a freezer full of it, and it goes quite well on pasta.

  • A Secret Band of Robbers||

    Buttery, goosey bacon.

  • Robert||

    Not as good as regular chopped liver, which in turn is OK but not one of my favorites.

  • anomdebus||

    I wonder if geese were given the Seattle pig treatment if they wouldn't 'gras' themselves..

  • AlmightyJB||

    We have a serious Geese overpopulation in Columbus. Those things are everywhere. They're constantly screwing up traffic. And there is geese poo everywhere. I actually saw a geesebegone car at work the other day so someones found a way to make money off the problem.

  • jester||

    Shoot the fuckers in the night. It's probably a felony. But shoot them. The Nature Conservancy and other environmentalist groups don't have the huevos to do what is necessary.
    They know it's the right thing to do but they are playing the animal rights vs. conservationist money donation game and are trying to play it safe.

  • Skonkey||

    They're federally protected. International migratory birds.

  • Bucky||

    in the N.E. some idiot brought in Michigan birds and they never leave.
    however, they are tasty...

  • Gorilla tactics||

    Then have a buddy 3d print a gun and blow them out of the fucking sky once they're in tijuana aireospace

  • AlmightyJB||

    I've thought about it for sure. But I like to get more personal pleasure out of my law breaking.

  • Sevo||

    I heard a guy in the SF East Bay make the comment that he'd been to Canada more than those geese.
    They've taken up year-round residence in some lakes and it's a mess.

  • Robert||

    For decades they've been crowding out ducks at the usual places in the Northeast. Wild geese aren't as much fun as wild ducks up close, but they are good honkers.

  • SonofSanfordandSon||

    Live and let liver

  • jester||

    Even in Hollande's France you can buy foie gras. Wake the fuck up, goose-o-philes. Choose your targets wisely.

  • Warrren||

    Yeah, but that fat fuck eats 75% of it.

  • ||

    What a bunch of assholes people can be to other people.

    Go to effen work you self-righteous jerks and leave people alone. Just look at the Middle-East to see what happens when people don't have real jobs. You end up wailing and barking at the moon in pjamas and sandals.

    That's worse than Costanza wearing jogging pants.

  • juris imprudent||

    Just to cross-generate memes: Costanza, yoga pants

    Yes, you made the mental connection.

  • John Galt||

    No idea what foie gras is, but I bet it tastes awesome in California, even it's something that tastes like crap everywhere else. As long as it causes some arrogant control freak's head to explode it's got to be good.

  • ||

    Goose liver pate, basically. But from a goose that has been overfed so the liver is enlarged and much fattier than normal.

    What gets the animal rights folks so up in arms is the way this is accomplished in a lot of places, is with a restrained goose and a feeding tube.

    Of course, if that were so inhumane that it couldn't be tolerated, doing something similar to someone on a hunger strike would be cruel and unusual punishment.

  • Bucky||

    see, we can get hot and bothered about force-fed geese.
    but aborted baby's feet and hands in jars- well, that's a woman's choice...

  • rxc||

    Not pate - fattened liver from a duck or a goose. You can eat it raw, lightly sauteed on toast, on a burger, on pasta, among others. It is man-made, in the sense that humans take control of a normal behavior pattern of the animal (storing energy in the liver by over-eating), and just harvest the animal for the liver and other parts at just the right time. The rest of the duck is really good, as well, and the fat makes fabulous fried potatoes. Very non-PC, of course.

  • playa manhattan||

    For southern CA reasonoids, Hot's Kitchen is in Hermosa Beach and it is delicious. It is the only time I have ever had Fois Gras. They also have great beer.
    http://www.hotskitchen.com/

  • ||

    It's on my list of places to go, I'm a little ashamed I haven't been yet.

    I think Waterloo & City in Culver City served it prior to the ban going into effect. They just serve normal duck pate now. It's tasty stuff.

  • playa manhattan||

    I went to Hot's with my brother, and we had the pleasure of dealing with some protesters. It made for some good entertainment, given that we arrived by bicycle and had several drinks each...

  • playa manhattan||

    Cafe Pierre on MBB used to have it too...

  • michael.disciullo@gmail.c||

    They did. Chicken Liver and Foie Gras parfait. I love that W&C is at the end of my block. Gotta love a place with a great beer selection, delicious food, two happy hours per day, and attractive bartenders who will give you free shots of Jameson at last call. Plus, it's only about two miles from the new Reason HQ in Culver City.

  • Sevo||

    In SF, the Presidio Social Club was offering it. It's on national park land, so the CA ban doesn't apply.
    Problem is they were inconsistent about whether they had it on a given day and were cautious about saying so over the phone.

  • ZackTheHypochondriac||

    I'm with you on salt and soda baylen, but on this issue you're wrong. If there is no way to create foie gras with minimal suffering then it should be outright banned , if there is a way then it should be mandated to do so if you want to produce it. If not then we can wait till they can grow it in a vat at which point we can eat as much of it as we want.

  • prolefeed||

    Perhaps you would care to come up with an OBJECTIVE definition of "minimal suffering" that isn't "I feel uncomfortable contemplating this topic" and doesn't ban killing animals for meat?

  • Redmanfms||

    If there is no way to create foie gras with minimal suffering then it should be outright banned...

    Ugh, this shit again.

    Can't wait for Tonio to come in here and make some patently disingenuous argument comparing duck/geese to fucking human babies (while simultaneously supporting abortion).

    Oh yeah, and fuck off slaver.

  • Redmanfms||

    fucking human babies

    Ha. It's funny because it still works....

  • Gorilla tactics||

    they will prolly never walk right though

  • ZackTheHypochondriac||

    The genes for pain and suffering are highly conserved so it is likely that animals can feel those to the same extent we do despite their lower intelligence. I hope I'm wrong but in the mean time might as well not take the risk. And if this were a few hundred years ago you would have been the libertarian defending slavery because blacks aren't on the same moral plane as whites, so you Fuck off slaver.

  • Redmanfms||

    And if this were a few hundred years ago you would have been the libertarian defending slavery because blacks aren't on the same moral plane as whites, so you Fuck off slaver.

    And there it is, just as expected. Yup, blacks = animals, and who is the slaver????

    Animals are not humans, as such they do not have rights. If you choose to not eat an animal product because you fear they might feel pain as humans, great. Banning the product because, "you hope you're wrong but we might as well not take the risk" on the possibility animals feel pain is not the position of liberty.

    To continue with the slavery strawman, when are you going to be fighting for the emancipation of farm animals and household pets, and for their franchise fuckwit?

  • Gorilla tactics||

    I just want to make my position that I am opposed to eating over stuffed livers that used to belong to African Americans..ok...OK!?!

  • Robert||

    From what I've heard, this is with minimal suffering, maybe less than for factory chicken, the intubation being more to keep the process quick & clean than anything else.

  • WomSom||

    These guys totally know whats going on today.

    www.AnonThis.tk

  • ZackTheHypochondriac||

    Objective? Probably not, that doesn't make it an illegit.
    imate concern

  • ||

    It does when you're attempting to make good laws.

  • Bucky||

    by 'top men'...

  • Jayburd||

    Bingo! Hoping that objectivity won't stand up in court can be very expensive. And subjectivity in public opinion can be destructive. Like 10,000 Rwandans with machetes.

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  • jdgalt||

    It would be helpful if the writer would tell us what the "Dormant Commerce Clause" is.

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