The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The California foie gras statute provides,
A product may not be sold in California if it is the result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size.
Today, in Association des Eleveurs de Canards et D'Oies du Quebec v. Harris (C.D. Cal.), Judge Stephen V. Wilson interpreted this not to include situations where
- The Seller is located outside of California.
- The foie gras being purchased is not present within California at the time of sale.
- The transaction is processed outside of California (via phone, fax, email, website, or
- Payment is received and processed outside of California, and
- The foie [gras] is given to the purchaser or a third-party delivery service outside of
California, and "[t]he shipping company [or purchaser] thereafter transports the product to the recipient designated by the purchaser," even if the recipient is in California.
UPDATE 7/15/2020 10:20 am: I originally wrote, foie gras "could be on the menu," but I realize now that this suggests that it could be distributed further by restaurants, and some news accounts so suggest; but, just to be clear, the decision expressly deals with people receiving it in California, and not with people further reselling it: "No relief is offered, for instance, 'to sellers of Hudson Valley's and Palmex's foie gras products who are located within California (e.g., restaurants) [who] have been forced to stop selling them to purchasers in California ….'"
So the key beneficiaries of this particular decision are people who buy this for their own homes (and those who sell remotely to them), or for catered corporate and organizational events where one can plausibly say that the foie gras isn't being further "sold" in California. Query whether restaurants would also be able to distribute the foie gras as a supposedly free "amuse bouche" add-on to an expensive meal, which some restaurants have apparently done.