Foie Gras Ban

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.

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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.

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  1. Foie Gras? how gauche.

    All the cool chefs serve marrow bone

    1. Why not both?

  2. Well, this *is* CA, so any comment regarding the constitution is pretty much worthless.
    The Dems are large and in charge.

  3. Don’t bans cost money to implement? In that case, “No, fuck you. Cut spending.”

  4. OT: Kansas City Chiefs linebacker Jovan Belcher murders girlfriend and then kills self at Arrowhead Stadium.

    He shot himself in the head right in front of coach Romeo Crennel and GM Scott Pioli.

    1. Before turning the gun on himself, Belcher thanked Chiefs general manager Scott Pioli and Romeo Crennel for all they had done for him, police spokesman Darin Snapp said.

      I’d have to take that as a mixed message.

    2. “The Panthers have been told to fly to KC for a regular game. ”
      Uh huh.

    3. I thought the last three paragraphs were kind of inappropriate when it described the Chiefs struggles. I highly doubt a normal, sane person would kill himself, his girlfriend, and orphan his 3 month old kid because he was being paid a lot of money to be a on a bad team.

      1. Yeah, that pissed me off. Sorry, ESPN, but there’s a bigger issue here than that the Chiefs are having a shitty season. Some things are, in point of fact, more important than sports.

        1. Gasp! Around here they would surgically remove your Y chromosome for blaspheming that way. And in public too!

    4. If this is in any way linked to concussions, holy fucking shit is that bad PR for the NFL.

      I mean, the guy was 25, so I’m more thinking an undiagnosed mental illness, but it says something that you still wonder, whenever an NFL guy does stuff like this, “Was it head trauma?”

    5. Tragic. This story is so depressing. Why the hell can’t people sort out their problems non-violently? This stuff makes me angry/sad.

      Anyhow, fuck PETA. Fuck California. Fuck Michigan.

      1. Shitty, pointless, terrible things happen. All the time. Best get used to it. I’m not trying to be callous, it’s just the way it is.

        1. I know. My brother-in-law killed himself under very similar conditions. This episode just triggered an emotional response.

    6. I live about a mile from Arrowhead Stadium. Shit is crazy.

      1. Wholly mackeral! You were within range if he had missed!

  5. Don’t bans cost money to implement?

    They pay for themselves. Consider marijuana for instance. The payoff is huge.

  6. Some things are, in point of fact, more important than sports.

    If this is true, why do “political analysts” all model themselves after shitty play-by-play announcers?

    1. I will defer to my esteemed colleague Epi for this one.

    2. Because politics is sports for the TEAMs. That’s exactly what it is for them. Tribal warfare by proxy, bitches!

      1. Why can’t we be like those Canadians and settle their differences via lacrosse?

        1. What are you, a pussy? Curling.

          1. Doug: Yeah well yours are sucky white skates like a figure skater.

            Bob: Well, yours are like referee skates–at least figure skaters know how to
            skate, eh?

            Doug: Hey! Somebody horked our clothes!

            1. If I didn’t have puke breath I’d kiss you.

  7. “The Panthers have been told to fly to KC for a regular game. ”
    Uh huh.

    THE SHOW MUST GO ON

    1. The bread loses its savor without the circus.

  8. What a weak article–Linnekin’s argument is all over the map and lost the whole while. Obviously the restaurant is breaking the law. They charge more for the burger with the side of foie gras because that burger comes with “whole grain mustard?!” The law is unconstitutional because it does not include a rigorous definition of forced feeding?

    Maybe Linnekin does not think that laws regarding animal cruelty are a legitimate function of government. If so, let him make that argument.

    1. Yeah, and I’ll bet that restaurant owner probably also thinks he should get to decide what to pay his employees rather than the government. How evil is that?

      1. Almost as evil as allowing people to choose their own health insurance in a free, competitive market of insurers.

        HAIL GRANDFATHER LENIN! ZA NASHU SOTSIALISTICHESKUYU RODINU!

        1. Spokanite: Linnekin argues that the ban is too vague, which conflicts with due process and enforcement principles. Yes, you cannot have a ban on something without a clear definition of what is being banned. Otherwise no one knows if they’re breaking the law. This is a fairly clear enforcement issue.

    2. Linnekin’s argument is all over the map and lost the whole while.

      Well, when you write a vague, unenforceable, unconstitutional law, it can result in more than one flaw, any one of which renders the law invalid. You seem to think that pointing out some of those many flaws is being “all over the map.”

    3. Obviously the restaurant is breaking the law.

      Not obvious to me.

      regarding animal cruelty are a legitimate function of government.

      This, of course, isn’t a law about animal cruelty. Its a law about what you are allowed to eat.

      Plus, its by no means clear that modern production of foie gras involves cruelty (in the context of the modern food industry, at least).

      Each feeding takes only a few seconds and the pressure applied has been studied to be non-injurious to the duck. A funnel is inserted down the duck’s esophagus, which deposits food as it is drawn out of the esophagus. Ducks do not have a gag reflex, throat or stomach, and the esophagus serves as a holding area for the feed while it is digested. The duck’s esophagus, as with any waterfowl such as the blue heron, which is able to swallow large, live fish, is expandable and pliable. For these reasons, the feeding is not harmful to the animal, as proven by scientific studies.

      http://www.artisanfoiegras.com/about/

  9. Based on the current Supreme Court interpretation of the commerce clause, it is unconstitutional. California’s foie gras ban has a net effect, in the aggregate, on interstate commerce, therefore unconstitutional.

    It isn’t a libertarian argument, to be sure, but PETA is filled with progressive fuckers, and I think it is only fair to use their same logic against them.

    1. Right, but you can’t simultaneously argue that this law is unconstitutional, because the feds have the right to regulate interstate commerce, and that a federal broccoli ban would be unconstitutional.

  10. politics is sports for the TEAMs.

    Speaking of which, as I was flipping through the channels, MSNBC star library-paste-eater Melissa Harris Perry was doing the intro to her show, and made it plainly obvious in the forty five seconds I watched that the whole thing was going to be about how the entire “fiscal cliff” debate should be based on We Won, Suckahs!

    She was explicitly basing the show on The Godfather “offer they can’t refuse” meme.

    Circling the drain, we are.

  11. Browsing the HuffPo article on the murder-suicide I saw no less than 4 comments complaining about cuts to state mental health programs. Yeah, because clearly if those evil austerity Republicans hadn’t have cut mental health programs this highly-paid athlete would have gotten the health care he needed and this wouldn’t have happened. Fuckin’ morons.

    1. They’re pinkos. I’d be surprised if they didn’t trail off into some other gem of progressive dumbfuckery in a completely illogical way.

      1. And the guns, yup, they aren’t forgetting that a gun was involved.

        1. Hoplophobic, submissive prohibitionist assholes tend to be on the lookout for weapons to bitch about.

          That gun killed him. We should charge it with murder in the first degree.

          1. Yeah, an online comment on one of our local news sites was something like “So, how’s that second amendment working out?” What. The. Fuck?

            1. The amazing thing is that this guy most likely supported Obama and everything he is attempting to do including taking away gun ownership. This is because OTHER people shouldn’t be allowed to own a firearm.

            2. The Second Amendment would have worked out just fine if his girlfriend had chosen to exercise her right to keep and bear arms.

  12. And the guns, yup

    They must be really confused by that love triangle or whatever it was in Wyoming. Apparently, the guy managed to murder two other people and then off himself without a gun.

    Baffling.

    1. It’s clear that bow control is needed.

      1. The story I read on it all but called it an “assault bow”.

  13. BTW:
    “PETA […] says HBPD has “a lot on their plates””
    http://instantrimshot.com/

  14. Haven’t heard of foie gras before this article. Now i’m tempted to try some.

    1. It’s not that great. The only reason I’d buy it is to piss off those PETA assholes.

      -jcr

      1. Almost the same reason that I now go to Chik-Fil-A every now and then.

  15. Foie gras prepared from the fat little livers of PETA members is rumored to be exceptionally delicate and delicious.

  16. I don’t know how I feel about this. I hate PETA and their idiotic ideas of how we should solve issues, but I have to side with the idea behind the ban. Many people don’t know how foie gras is made.

    Basically, they gavage the duck full of corn (which they don’t eat naturally ‘nor like) until it’s fat. Then they slaughter. For those whom don’t know what gavaging is, it’s when they forcefully shove unwanted food down their throat, which I’m sure is really fun.

    I’m one to accept that animals are to be eaten by, which unfortunately includes slaughtering; however, I don’t accept that the animals should be treated inhumanly either. Veal’s another delicacy people gobble up that is inhumane as well. It’s basically a baby cow thrown in a extremely small cage with a blanket thrown on top for a few years to stunt grow and keep it pale, then slaughtered.

    It simply stuns me how we can be a caring humane society when we perform such acts on living creatures. If you’re going to slaughter them, at least let them live without suffering.

    1. It simply stuns me how we can be a caring humane society when we perform such acts on living creatures. If you’re going to slaughter them, at least let them live without suffering.

      You make the mistake of thinking that libertarians are capable of empathizing with others. They aren’t. Their ideology is applied autism. They worship Mammon and the Self.

      1. “You make the mistake of thinking that libertarians are capable of empathizing with others. They aren’t. Their ideology is applied autism. They worship Mammon and the Self.”

        Where is your proof of this. If you cannot show specific examples then you are simply spewing unfounded bias.

        1. Where is your proof of this. If you cannot show specific examples then you are simply spewing unfounded bias.

          Look at any number of comments on this site in which the idea of labor making a living wage is enough to throw lolberts into a screaming fit.

        2. Because nothing says “I empathize with others” like forcing them to do what you think they should do, regardless.

    2. Ever see the footage of Orcas “playing” with a seal before they kill it? Or, watch your cat w/ a chipmunk or bird? We’re still just animals even though we like to pretend we’re different. I agree w/ you, it’s inhumane…so I don’t consume it. No need to ban, just live your life.

      1. I agree w/ you, it’s inhumane…so I don’t consume it. No need to ban, just live your life.

        I wonder how the ducks feel about just “living your life.”

        1. It’s a duck, when it can vocalize those feelings we’ll talk. Look I get the whole humane arguement I really do. As a hunter I’m constantly reminding the younger hunters about ethical shot selection and humane killing.

          The problem you have is that there is obviously a market for this, and for veal, and for shark fin soup, ivory, whale meat, dog, horse meat, tiger penis…etc. But your right, the government will fix it and make it all better!

  17. Unconstitutional? Tenth Amendment, you blithering dolt. You might disagree with the law, but that doesn’t make it unconstitutional.

  18. Sometimes you jsut have to roll with it dude.

    http://www.WebAnon.tk

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  20. I live in California and didn’t know about this ban that was signed into law by Arnold Schwarzenegger over eight years ago.

    This seems to be another case where a very small percentage of the population convinces liberal elected politicians to enact legislation to limit the majority. The majority doesn’t think that such a ban doesn’t apply to them but what happens when they move from the foie gras in the burger to the beef in the burger.

  21. I highly doubt a normal, sane person would kill himself.
    CR2032

  22. I agree that PETA is wasting money and energy in legal actions. I’d recommend direct action if they want to eliminate these practices. A short, sharp shock. A masked mob laying waste to a foie gras restaurant should send a strong message. Stronger at any rate than years in court arguing over obscure technicalities.

  23. I certainly understand your position that foie gras should not be banned, but this is no different than a side of fries – both are being sold. Businesses sell goods and services; restaurants sell food.

    This business is selling foie gras.

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