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.

Taken together, these animal rights lawsuits against foie gras producers and sellers appear designed largely to distract and to chill opposition to the foie gras ban. After all, at least two of the defendants in the aforementioned lawsuits, Hot's Kitchen and Hudson Valley Foie Gras, are also plaintiffs in the principal lawsuit seeking to overturn California's ban.

But this chicanery won't succeed because, as I've written before, the ban itself cannot stand.

If California's foie gras ban were in any way enforceable, then it would be enforced. But the law—even if it did not suffer from obvious and fatal defects—isn't enforceable. And every lawsuit an animal rights group launches against a restaurant, foie gras producer, or the federal government makes this fact more and more clear.