Why PETA's Foie Gras Lawsuit May Signal the End of California's Ban

PETA's lawsuit against a small California restaurant comes out of frustration that the state's foie gras ban isn't being enforced. But that's because the ban is unenforceable.

Earlier this week the animal-rights group People for the Ethical Treatment of Animals (PETA) filed a lawsuit in Los Angeles Superior Court against Hot's Kitchen, a popular Hermosa Beach restaurant, for violating the state's consumer protection laws by continuing to sell foie gras after the state's ban on the sale of the product took effect in July.

Hot's, along with other plaintiffs in Canada and New York, sued the state of California in July—seeking repeal of the ban shortly after it went into effect. And Hot's, like a few others, as I noted in July, has given away free foie gras to customers who continue to demand it even after the ban took effect.

PETA views Hot's foie gras giveaway as something else, accusing the restaurant of selling foie gras in violation of the state's ban.

This controversy mirrors the lawful "duck-easy" protests that took place under Chicago's short-lived foie gras ban five years ago, a subject I covered in some detail for Doublethink magazine in 2007. (Note that Chef Didier Durand, who's featured prominently in the article as owner of Cyrano's restaurant in Chicago and a leader of the anti-ban movement in the city, is currently chairman of the board of Keep Food Legal, the nonprofit I lead.)

In its lawsuit, PETA alleges specifically that Hot's Kitchen's "'THE' Burger" is skirting the state ban because Hot's serves it "with a complimentary side of foie gras."

The group also alleges that it knows Hot's is selling the burger—rather than giving it away—both because PETA sent agents to the restaurant who it claims purchased the THE Burger and because the THE Burger costs more than other hamburgers on the Hot's menu.

"I think PETA has a decent argument that the increment in price implies that a sale has been made," says Jeffrey Dermer, a California attorney who is familiar with the ban and foie gras lawsuits in the state and who neither supports the ban nor is representing any of the parties involved.

PETA's argument here is certainly a better one, in my opinion, than its widely (and hilariously) panned suit earlier this year that claimed killer whales should be protected as people under the 13th Amendment.

But while PETA's argument in the Hot's case might pass the laugh test, its price-increment argument appears only to go so far.

After all, Hot's THE Burger is demonstrably different than other Hot's burgers—even apart from the free side of foie gras. Just look at the menu. THE Burger is the only Hot's burger that comes with whole grain mustard. Other burgers come with plain or Dijon mustard. I'd gamble that whole grain mustard is fancier, costlier, and more desirable than other Hot's mustards. Perhaps Hot's even makes that whole grain mustard from scratch while buying the other mustards in prepared form from food-service suppliers.

THE Burger also comes with "balsamic thyme onions." Other less costly burgers come simply with "onion," "red onion," or "grilled onion." As with the whole grain mustard, the inclusion of balsamic thyme onions hints not just at the cost of added ingredients but of added preparation time (another cost) required on the part of the kitchen staff.

For all these added ingredients, time, care, and preparation, PETA reveals in its lawsuit that Hot's charges as little as $1.50 more for its THE Burger than it does for the "next-most expensive hamburgers on its menu." If PETA is correct that Hot's is charging money for its serving of foie gras—rather than giving the foie gras away for free, as the restaurant claims—I challenge anyone to show me any restaurant menu in America that charges so little for a side of foie gras. (Ray's Hell Burger in Arlington, Virginia, for example, sells a foie gras and truffle oil topping for its burgers for an additional $10.)

PETA may not like or understand the way Hot's chooses to price its food. But in the same way we need not comprehend why everything appears to have added value these days because everything in the world is now collectible, we also need not understand why a business charges what it does for a product it sells. If on the other hand we want to understand, we can consult an economic model. In any case, neither PETA nor California law has or should have anything to say about how much a restaurant charges for a hamburger.

While I expect these and a few other noteworthy particulars will doom PETA's case, this suit will lay bare a larger truth that I and a few others have long argued about California's foie gras ban: It's so vague as to be unenforceable in any manner that comports with constitutional requirements of due process.

After all, why hasn't some governmental unit brought even one enforcement action in the state? Why isn't Hermosa Beach enforcing the foie gras ban against Hot's Kitchen?

In the suit, a copy of which is here, PETA claims it couldn't "persuade" Hermosa Beach police to care—the group says HBPD has "a lot on their plates"—at least not enough to enforce the state ban.

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.