Foie Gras Ban

Your Right to Eat Foie Gras

The Golden State's regulatory overreach.


Foie gras
Margouillat /

Last week, Reason Foundation (the nonprofit that publishes Reason) partnered with the Cato Institute to file an amicus curiae brief with the U.S. Supreme Court in support of the foie gras producers and sellers who are challenging California's awful foie gras ban. In March, the plaintiffs asked the Supreme Court to take up their appeal after the Ninth Circuit Court of Appeals last fall reversed a U.S. District Court ruling that had struck down the ban.

I agree with every single word in the Reason/Cato amicus brief. I should; I wrote it.

Foie gras, a delicacy made from duck or goose liver, is produced using a process known as gavage, which involves fattening a bird's liver by feeding it a mix of fat and grain through a tube inserted into the bird's mouth.

Animal-rights groups, which claim gavage is cruel—there's ample evidence they're wrong about that claim—convinced then-Gov. Arnold Schwarzenegger in 2004 to sign a law banning the force-feeding of a bird for the purpose of fattening the bird's liver. The California law, which regulates farmers not just in California but also in every other U.S. state and every country on the planet, took effect in 2012. The day after it did so, the plaintiffs in the present case sued to overturn it.

I first wrote about foie gras more than a decade ago, when I visited Chicago during that city's own short-lived ban and attended a brilliant, multicourse protest dinner. (Foie gras for dessert? Yes, please.) I wrote about the dinner, ban, and protest in a lengthy piece for Doublethink. One of the paying guests at the dinner, a young chef, told me Chicago's ban had made the city "the laughingstock of the culinary world."

Chicago soon repealed its ban, leaving California alone to carry the dubious mantle of laughingstock, a challenge the state never seems shy to embrace.

California's foie gras ban is deeply flawed. I described many of its issues in 2012 column, and have written extensively on the subject in the years since.

One of the law's very evident problems is that California, despite being more populous and powerful than any other state, is still subject to the federal Constitution. That means it has no authority to regulate interstate commerce. What's more, the federal government does have such power, and it's used that authority to regulate poultry slaughter and sales.

"The foie gras ban isn't unconstitutional primarily because Congress has legislated in this area but because California cannot legislate in this area," I wrote in 2015.

But that's just part of the story.

The possible implications of a state animal-rights law that interferes with interstate and foreign commerce in animal products are already reverberating. Last year, in separate lawsuits, each brought by more than a dozen states, California and Massachusetts were sued over respective animal-rights laws in those states that similarly discriminate against interstate and foreign commerce.

Together, the California and Massachusetts laws target eggs, pork, and beef sales. If it seems as if a couple states can do widespread and lasting damage to livestock farmers, retailers, restaurateurs, consumers, and food freedom across the country, then that's also the reality. That's also what makes this foie gras case so important.

"My farmer clients' ducks are the proverbial canaries in the coal mine," said attorney Michael Tenenbaum, who represents the plaintiffs, in an email to me this week. "If, in spite of the authority given to USDA under principles of federal preemption, the Ninth Circuit continues to let California try to ban fattened duck livers, then there is nothing to stop from any state or city from banning chicken wings—or all meat and poultry products that come from animals raised for food."

Tenenbaum is absolutely right. His point—that the foie gras ban is intended to be a foot in the door for future bans of even the most mundane animal products, from ground beef to chicken wings to pork chops—is correct, even if it's somehow understated.

California's foie gras ban, I write in the amicus brief, "poses a grave challenge to the future of food and agriculture in this country [because it] could undermine our national markets in food and decide ultimately whether all future meat production will be outlawed in America." The case "involves questions concerning federal and state regulation, the national economy, the free market, and food freedom. Given both the essential nature of food in Americans' daily lives and growing regulatory threats to agricultural and food producers, amici believe states should not and may not impose unwarranted burdens on interstate commerce in food."

Manny Klausner, a former editor of Reason, a Reason Foundation co-founder and board member, and attorney, joined me in filing the brief.

"This brief supports Reason's commitment to 'Free Minds and Free Markets,' Klausner told me this week. "And it's particularly satisfying for Reason to file a Supreme Court brief defending liberty that quotes Thomas Jefferson and James Madison's opposition to bans on various types of foods and liquors as 'lunacy' and 'despotic'—and also cites Escoffier, Julia Child, and Thomas Keller!"

Others filing briefs in support of the plaintiffs include the U.S. Poultry & Egg Association, a Canadian food group, the government of France, and 11 U.S. states.

"We believe the Supreme Court will hear the chorus of governments, industries, and defenders of freedom who submitted amicus briefs in support of our petition, and will agree to take up our case," Tenenbaum told me this week.

I'm proud to have had the opportunity to work with Reason Foundation and The Cato Institute and to lend my voice to the chorus urging the Supreme Court to take up this important case.

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  1. I’d hate to see the USA divided up into a chaotic mass of tiny little states and counties, it’s legal here but not there, for millions of items. You can scratch your own butt here, but over there, you must hire a licensed physicians to do it! It’s quite ENOUGH of a mess already!

    1. I laughed first because of the hyperbole, but I kept on laughing because I have no doubt that quite a lot of statists could probably be cornered into admitting that yes, they do think that is a valid stance for the state to take.

      Just as the statist lawyers agreed that yes, the government could ban political books before elections (Citizens United), and yes, the Second Amendment only allows muzzle loading muskets and does indeed confer a right on states in contrast to all the other first 8 amendments, and yes yes yes, the state can control pretty much anything it wants.

      1. I’m guessing that to you anyone who doesn’t want to revert to anarchy and living in villages is probably a statist to you. Is that correct?

        1. Anyone who thinks the State, merely by reason of being the State, is thus known to be competent, wise, and benevolent, regardless of circumstances.

          Also, anyone who thinks the only alternative to Statism is chaos, which they mistakenly call “anarchy” — you people are also statists.

          1. If Government Almighty does NOT tell us, all day, every day, exactly when, where, and how we will be allowed to blow our schnauzer-hoonker-booger-noses, then the intergalactic trade in booger rags will be affected, and there will be HELL TO PAY!!! Vote NOW for BIGGER Government Almighty, or it will only get WURSTERER +100!!!!

            1. I’m making over $7k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life.

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          2. It can be. Simply prohibit it from initiating force by limiting its authority to the retaliatory use of force.

        2. You must wonder how the human race survived before the invention of bureaucracy.

  2. So now the place that invented Californian Cuisine has become a culinary laughingstock. I’m not surprised. There was this Woody Allen movie way back where Annie Hall tries to convince Woody to leave NYC ansnmove to LA with her. I never forgot what his reply was: “Why would I move to a place where the only cultural advantage is to be able to turn right on red?”

  3. I don’t oppose the foie gras ban because I like foie gras but because I hate geese.
    Somebody had to say it.

  4. I am a libertarian and I stopped eating it voluntarily when I read about the process of creating it. They’re animals and we’re humans so I’m not going to tell people what they can and can’t do with them, but make no mistake, it is a cruel process. I don’t care to be a part of that.

    1. “They’re animals and we’re humans ”

      I agree with Jacques Derrida regarding the word ‘animal:’ Ants, horses, snakes, there is no justification for putting them into the same category. The violence we inflict on geese, for example, is engendered in this conceptual simplification.

    2. Humans are animals too. If you ever watched a Chimpanzee group you would see we aren’t that different at a basic level.

      1. “If you ever watched a Chimpanzee group you would see we aren’t that different at a basic level.”

        I agree. You should see how nicely they run their town hall meetings!

        1. ^This!

    3. It’s not. They don’t have gag reflexes and they naturally fatten their livers before migrating.

  5. I’m against this ban for the same reason I’m pro-abortion. The process may be unseemly, but the end result is too necessary to civilized life to abolish.

    1. Ah, but abortion murders a tiny human being, not a goose.

      1. What if we force-fed it to a goose?

      2. I did say unseemly.

      3. If you have information concerning a murder (let alone multiple murders), the sole responsible course for a decent adult would be to alert the proper law enforcement authority without delay.

        If you have no such information worth reporting to the relevant authority, the sole sensible course for a decent person would be to stop spouting superstitious nonsense while adults are attempting to conduct reasoned debate.

        Carry on, clingers.

        1. Ahhh… is that really artie or one of his many spoofers? Must be a difficult life being a living example of Poe’s Law.

      4. Who are you so knowledgeable in the ways of science?

    2. What about individual liberty?

    3. I can’t agree with you on being pro-abortion, but I do agree that at least allowing foie gras and elective abortions is consistent, while allowing the latter but not the former is indicative of creeping fascism.

  6. When will the author treat us to his views concerning the inexplicable laws that make dog, cat, horse, and other meats contraband in America?

    1. As long as there are people out there who don’t consider animal and pet abuse a “natural born” right.

    2. Excellent question. Why are certain animals ok to kill and eat and it varies between culture, location, and religion.

      With dogs and cats it is because they are beloved pets. That places them in the do not eat category. The dogs and cats are supposed to agree.

      There is no real rational answer and people eat all kinds of things.

      1. Addendum.

        The term I was looking for is ‘symbiosis’.

    3. The upshot of Baylen’s argument is obviously to expand federal power and to diminish state power. Which I find a puzzling position to take, for a libertarian, but there you go. They obviously think they have a lock on federal policy and will never live to see the day that Congress implements a nationwide foie gras ban.

      I don’t care one way or the other about a nationwide ban, but I personally hope they do, just so they can see how their arguments have come back to bite them.

      1. It is an odd position, but I think the other take is that if you are going to regulate you can’t regulate from two different directions. And it might be a reasonable use of the commerce clause. Of course, since it might be reasonable it will be struck down.

        1. There’s absolutely no problem, in my view, with the federal preemption argument, to the extent the California ban properly falls within the scope of an area that the federal government has already regulated. That’s just the Supremacy Clause. My objection is to the insinuation that banning a product at the state level would actually be unconstitutional in any case, as too broad an exercise of state power. That argument necessarily holds that the only level of government that can do what California has purported to do is the federal government.

  7. And God said, Let us make man in our image, after our likeness: and let them have dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and over all the earth, and over every creeping thing that creepeth upon the earth.

    I’ve been agnostic ever since I first became aware of the concept of God and religion but on this issue I agree 100% with “the book”:

    God said it

    I believe it

    That settles it

    1. The bible is so full of contradictions that basically it is worthless except as a study in what goes wrong with organized religions and what we should avoid as a civilization.

      1. The bible is useful with respect to sorting the gullible from reasoning adults.

        1. And apparently the assholes too.

      2. The internet is so full of summary judgments based on ignorance that it’s probably best to just turn off your device and go outside to play frisbee.

  8. I never saw a problem with regulating unnecessary animal cruelty, of which this is. Almost as bad as the bear and dog farms in China and chopping off Rhino horns for imaginary medical purposes. Factory farming is a fact of life on a planet with 7 billion people, but torturing ducks for some “tasty” liver seems over and above the rights of individuals to do it. Too bad California lost this one.

    1. Why do you think it’s torture?

      1. Because it’s trolling.

  9. To all you who say foie gras is animal cruelty: The Physiology of Foie: Why Foie Gras is Not Unethical
    If you haven’t read this, your opinion is worthless. If you can’t rebut it from actual experience, your opinion is hearsay.

    1. That was very enlightening. I’m not a Foie fan so I don’t have a dog in this race but I’ve always had a vague opinion that production of this food, by necessity, required extraordinary cruelty. I stand corrected. As usual, the conventional wisdom made a fool of me.

      1. Same here. Some friends tried telling me it was not animal cruelty, but they were just a little biased because they like the stuff. Someone at Reason linked to this, and it’s just a little too thorough to be mere propaganda. Myself, I sort of like the taste / smell of liver, but can’t stand the texture, and haven’t eaten any since I was a kid and had no choice. I don’t think I will ever try foie gras, just from the association.

        1. Duck liver is not calf liver.

          1. I hate all liver I’ve tried. Especially chicken liver.

  10. I once had the tasting menu at a nice restaurant in Napa not long after the foie gras ban was first put into place. The menu made no mention of foie gras, but as an opener, we got a “complimentary” dish of it, which probably would have gone for at least $20 at the time. It was delicious and I was delighted. Anyway, as an eff you to all the California prohibitionists, I make it a point to order foie gras whenever I see it anywhere in my travels.

    1. If you also believe restaurants should be permitted to buy and serve dog, cat, and horse, I salute your consistency and respect your principle.

      1. If there is demand for such tasty meats, Arby’s will be on the forefront. We have the meats!

  11. Justice Elena Kagan was explicit that a federal law mandating the consumption of broccoli would be constitutional. By ruling favorably upon the constitutionality the ObamaCare mandate, the SCOTUS majority sided with Kagan’s opinion.

    There are few federal constitutional limits on the scope of a state’s authority. If it is constitutional for government to mandate that the serfs eat broccoli, I can’t see why government can’t forbid foie gras. Out of state producers of foie gras don’t have to modify their production methods; they just have to quit selling forbidden foie gras in California. California weed farmers face the same situation with potential customers in Utah. If states and municipalities can partially or totally forbid alcoholic beverages, certainly they, too, can forbid foie gras.

    Sure, there is a natural right to eat what you want, but the theory of natural rights is an idea dreamed up by a bunch of dead white men about a hundred years ago. The 9th Amendment is just an inkblot between the 8th and 10th Amendment. The 10th Amendment says California government can do any stupid thing it wants other than crown a king, grant titles of nobility, print its own paper money, declare war or enter into treaties with foreign nations, etc.

    California may very well ignore an unfavorable SCOTUS ruling anyway. There’s no way the feds would impose any consequences for their prosecution of the war on foie gras.

    1. California could not enforce a foie gras ban once the Supreme Court made it illegal. Anyone trying to would lose their qualified immunity and be personally liable for damages.

    2. “Justice Elena Kagan was explicit that a federal law mandating the consumption of broccoli would be constitutional. By ruling favorably upon the constitutionality the ObamaCare mandate, the SCOTUS majority sided with Kagan’s opinion.”

      Um, no. Not exactly. She failed to say the government couldn’t constitutionally do that. See here:

  12. I heard a very interesting story about natural foie gras. That’s right. No force feeding. Seems that the birds will gorge themselves as long as they don’t know another meal is coming.

    So it makes me wonder if this is cruelty or not. Maybe they like it. Just like poor Americans gorge themselves in front of the idiot box, turning themselves into obese pieces of useless, but likely tasty to cannibals, shit.

    1. They do it naturally before migrating. It’s their energy source.

    2. Well it’s in their nature to gorge themselves, yeah. I don’t think they require any particular anxiety about where the next meal is coming from. They’ll eat as much as you can give them. Greedy geese.

  13. I wonder if in the distant future, when there is a much deeper understanding of brains, and whole new branches of neuroscience that are as yet unimaginable, whether there will come a time when sentience is absolutely and irrefutably conferred upon other species by scienticians in the field of cybertelepathy, neurofield waveform harmonics, and synaptic probe dynamics. Whether, once a consensus is established about sentience, perception, and insight in non-human brains, there will be an argument among libertarian voices for the defence of individual liberties for other species. Just blue-skyin’ it here.

    1. Don’t care how smart a pig is or is not. You take away my bacon and there will be a war.

  14. It’s a little odd to me that you repeatedly make the claim that the California ban is unconstitutional, when the better argument really seems to be simply that the California ban is preempted. Indeed, at an initial glance, it seems like you have to pull and twist the Dormant Commerce Clause to get your desired result – I mean, how does a ban purport to “regulate” commerce worldwide? – which doesn’t inspire much confidence in your legal reasoning here.

    Stick to your lane, make the argument you can actually support. Why would the Supreme Court take such an expansive view of limiting states’ rights, for no reason? What do you think you’ll accomplish by simply federalizing every “food freedom” question?

    1. I agree. I don’t see a slippery slope here. Also, there will be a thriving illicit trade in foie gras within months. Ortolan are potentially a comparable example, although poltically and culturally France and California are possibly quite different. Also see Ambepoulia in Mediterranean countries. Those Europeans just love eating small birds.

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  16. Shoving a tube down a bird’s throat to feed it? Inhumane.

    Shoving a tube into a woman’s uterus to suck out the “fetal tissue”? Perfectly fine!

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