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Free Minds & Free Markets

The Ninth Circuit's Foie Gras Blunder

A federal appeals court raises California's unconstitutional ban from the dead.

Foie GrasWufang / DreamstimeLast week, the Ninth Circuit Court of Appeals overturned a District Court ruling that had struck down California's dumb and unconstitutional foie gras ban. The plaintiffs are already planning their appeal. Technically the ban is back, but the law won't be enforced while the appeal is pending.

"It is unprecedented and unconstitutional that the California legislature can dictate how New York farmers care for their animals, produced in compliance with New York's strict animal welfare laws, and processed under federal inspection," said Marcus Henley, manager of Hudson Valley Foie Gras, a co-plaintiff that's based in New York State, in an email to me this week.

"States have the right to protect their citizens from inhumane and substandard products," said Paul Shapiro, spokesperson for The Humane Society of the United States, which wrote an amicus brief in support of the state law, in an email to me this week. "Rather than continuing to fight a losing battle, foie gras agribusinesses should join the 21st century and accept that the vast majority of Americans find violently force-feeding ducks simply too much cruelty to swallow."

To Shapiro's credit, he predicted this outcome to me in 2015.

While that prediction seems long ago, this case has been winding its way through the courts now for around five years. The plaintiffs, led by an association of Quebec-area foie gras producers and Hudson Valley, had argued that California has no authority to regulate out-of-state and international foie gras producers. But a federal court rejected those arguments, determining in 2012 that such "vagueness, Dormant Commerce Clause, and preemption arguments [we]re 'unlikely to succeed on the merits.'"

Ultimately, a U.S. District Court held in 2015 that the law was preempted by the federal Poultry Products Inspection Act (PPIA), which governs, among other things, poultry-product "ingredients." The Ninth Circuit decision last week disagreed about the ingredients issue and overturned the lower court's ruling.

"The PPIA prohibits states from imposing requirements on ingredients that contradict federal regulations," Reason's Scott Shackford wrote last week, in a post that nailed the details of the court's reasoning. "But this foie gras ban technically regulates a process, the manner by which the foie gras is made. Therefore, the judges ruled, the California law does not come into conflict with the PPIA at all."

"In our case, there can be no question that California imposes a requirement on the primary ingredient in my clients' USDA-approved foie gras products—i.e., that they may not contain any force-fed foie gras—which is a requirement that is 'in addition to or different than' those under federal law and is therefore preempted," said California attorney Michael Tenenbaum, who represented the plaintiffs in the foie gras case, in an email to me this week.

"The last time the Ninth Circuit tried this—i.e., reversed a district court's preemption finding in an effort to save a misguided state ban on USDA-approved products on the ground that 'states are free to decide which animals may be turned into meat'—it was reversed, 9-0, by a Supreme Court opinion that said (literally), 'We think not,' as it would allow states to 'make a mockery' of federal preemption," Tenenbaum says. (Case link added for reference purposes.)

Tenenbaum and Shackford are correct in their facts and analysis. Ultimately, though, this case isn't about statutory interpretation or ingredients or processes or the PPIA. This is a case—plain and simple—about a farmer's right to raise animals that consumers want to eat, and a big bully of a state working hand in hand with animal rights activists to impose its vague and burdensome laws on other states, and even other countries.

No state should have such power. Thankfully—hey!—the U.S. Constitution ensures no state has such power. But these federal courts have so far missed that point.

In 2015, just after the District Court ruling striking down the ban, I wrote that I was pleased with the case's ends, but not with the court's means of arriving there.

Does the PPIA in fact preempt the California law? I. Don't. Care.

"I believe strongly that even in the absence of a federal law that preempts California from legislating, the state has no authority to regulate interstate commerce," I wrote. "The foie gras ban isn't unconstitutional primarily because Congress has legislated in this area but because California cannot legislate in this area."

Ultimately, I hope a Ninth Circuit panel, the U.S. Supreme Court, or both will decide this case upon this and only this constitutionally sound rationale.

What are the case's prospects on appeal? Foie gras supporters are optimistic.

"We have every confidence that the unconstitutional law will eventually be overturned for good," Henley says.

"I have every confidence that we will prevail again," Tenenbaum tells me.

I do, too.

Photo Credit: Wufang / Dreamstime

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  • Telcontar the (Obama) Birther||

    "Rather than continuing to fight a losing battle, foie gras agribusinesses should join the 21st century and accept that the vast majority of Americans find violently force-feeding ducks simply too much cruelty to swallow."

    Look, if Donald didn't want it, he shouldn't have worn a short shirt.

  • Scarecrow Repair & Chippering||

    It's none of my business what consenting adults do, and if people force feed ducks, well, they end up dead anyway. I don't care how cows are slaughtered. Nature is far worse -- gazelles die while the lion is eating them, not because the lion makes sure they are dead before munching away. You can see the quivering last kicks. Is cow slaughter any worse? Is a crippled and abandoned caribou better off as wolves pick it apart and hasten death?

    But I am also squeamish, and I would avoid restaurants which I knew mistreated food animals.

    There's a documentary out on foie gras, and I figured I owed myself watching as much as I could stomach because foie gras loving friends kept telling me it wasn't like that. To my amazement, they were right. The ducks came right over to get the funnel stuck down their gullets, looked as happy as a duck can look to humans. As much as the funnel made me feel like choking, it didn't bother the ducks at all. Heck, watch a pelican swallow fish. Completely changed my attitude.

    So carry on, foie gras fans! I don't like liver in the first place, doubt I'll ever spend that much money on trying foie gras, but I won't avoid your restaurants.

  • Eric Bana||

    I assumed the production of foie gras was inherently cruel to the animals, causing unnecessary suffering, which is why I was against it. I just knew they were force-fed and that was it. From a little looking into it I've had, it appears it isn't necessary cruel to the animal. I still support penalties to stop unnecessary cruelty to animals if it exists, though I now realize that the production of foie gras does not necessarily fall under that.

    Here's an article I came across: http://www.seriouseats.com/201.....not-u.html

  • Hank Phillips||

    I work in agribusiness and the practice of slowly beating geese to death is not at all the same as the dishonest duck-feeding anticoncept presented here. First leaving off the pâté is misdirection, as is the breastmeat picture. In Inquisitional tradition the French (and doubtless Quebecois) beat birds to death slowly so the liver enlarges to produce more pâté. Another variant involves clubbing tortoises to death for the same effect. Though primarily preoccupied with human individual rights and not an animal activist or vegetarian, the practice strikes me as even more needlessly cruel than the kosher and halal butchery hidden from view behind the skirts of the First Amendment (and dishonest reporting).

  • MSimon||

    I watched Kosher butchery and the other kind live and as a participant (I worked elsewhere in the plant). It was interesting.

    Most of what is done is for speed. It is not a religious requirement.

  • MSimon||

    I worked in a slaughter house in the summer of '63. I visited the killing floor.

    It was interesting.

  • C. S. P. Schofield||

    Food fetishists like Vegans and Organic weenies are a nuisance to their betters, and have been for a long time. We mock the Kellogs and their Wellville yoghurt enemas, but tolerate these new pissants trying to foist their mania on the rest of us. If they want to eat no cruelty organic tofu that's their business. Let them outlaw fois gras and in no time at all they will be trying to outlaw steak.

  • Hank Phillips||

    The argument from prophesying future events is a weak rejoinder to a defense of the cruel and unusual but deliberate slow torture unto death of a dumb animal to swell its liver.

  • Wizard4169||

    I eat only certified-organic, free-range tofu.

  • Sanjuro Tsubaki||

    Tasted quiche. Quiche is way better than foie gras. Not sure what's so special about it. But if there's one thing that grosses me out, it's red slime drizzled all over whatever dish the chef dream t up.

  • Don't look at me.||

    The red slime is the coagulated blood of young virgins. Probably something that will be banned next.

  • brady949||

    I had fois gras for the first time this year in France. The best way to make sure it goes away is to let people try it. It was horrid.

  • Juice||

    boudin and foie gras pizza

    hork

  • Eric Bana||

    Hork is also really good on pizza.

  • ToCa81||

    I love me some meat, but I do avoid eating lamb and veal. I also have no interest in trying this foie gras stuff. I really haven't done a lot of research on how the animals are treated. It's just my personal preference, and I don't judge anybody else who eats it. The government (unfortunately in this case, it's my beloved state again...) has no business getting involved. The consumers will decide what is acceptable and spend their money accordingly.

  • Hank Phillips||

    Yes, maybe. Have videos of cops shooting kids, especially brown kids, and pet dogs, slowed the rate at which these things are perpetrated? The obvious comeback is to publish snuff videos of geese or tortoises being beaten to death (if corporate censorship aka Youtube lets it air). The vacuum created by American ignorance of what foie means is handily filled by my corporate clients with fake definitions and misleading photos to paper over blatant cruelty. But the cruelty is in the torture, not the slaughter. Goose liver paté can be made as humanely as chicken breast sandwiches. The trick is to convince vegans the profit motive does not necessarily engender cruelty here the way it always has in Europe. (Good luck with that!)

  • ToCa81||

    It also comes down to one's stance on animal rights and cruelty. Should force feeding be made illegal? I can definitely empathize with people who feel that way. All I can say is that I definitely won't touch the stuff after just a brief review of the matter on Wikipedia. I also read about what you pointed out regarding humane foie gras, which seems like a much better option. Just because we have the power to make such ridiculous foods doesn't necessarily mean we should. Kind of reminds me of the old Louis CK "duck vaginas" bit. Still, if I'm being honest, I tend to lean toward change through social awareness as opposed to legislation concerning matters like this.

  • Telcontar the (Obama) Birther||

    "Still, if I'm being honest, I tend to lean toward change through social awareness as opposed to legislation concerning matters like this."

    With a bleeding-heart pinko attitude like that, next you'll be talking about decriminalizing marijuana and stopping cops from shooting poodles. And on a libertarian site! {shakes head sadly}

  • Brendan||

    Is it really an interstate commerce violation for California to say that a certain product or just a certain product made a certain way can't be sold in their states?

    I disagree with the ban, but isn't this squarely within the purview of the state under the 10th amendment?

  • Brother Kyfho||

    Nope. Interstate Commerce Clause.

  • Nwallins||

    Yes, this article glosses over what the complaint / harm is. It sure seems that California is free to make certain products illegal to own, consume, or sell, like bans on certain kinds of weaponry. And no, the ICC does not give the Feds jurisdiction over what may enter or be sold in California.

  • Bubba Jones||

    California regulates car emissions.

    California regulates gas formulations.

    Therefore California can regulate foie gras.

  • MSimon||

    There seems to be an error in spelling.

  • Bra Ket||

    "...the vast majority of Americans find violently force-feeding ducks simply too much cruelty to swallow."

    We do? So the point of the ban is to protect american from being offered products they would never buy?

  • BestUsedCarSales||

    Yeah, I feel like he contradicts himself a bit. He also says it is done to protect consumers from the practice. No it's not, people aren't hurt by this. He should focus on his actual argument, all the other dancing around and posing it as if it's a threat to people is silly.

    Just look at Hank here. He makes the animal rights argument squarely, and doesn't seem to be pretending that people need protection here.

  • Longtobefree||

    Let me guess; she teaches English language to spammers?

  • Longtobefree||

    "No state should have such power. Thankfully—hey!—the U.S. Constitution ensures no state has such power. But these federal courts have so far missed that point."

    California bans certain firearms in violation of the US constitution.
    California bans certain forms of free speech in violation of the US constitution.
    California bans certain free assemblies in violation of the US constitution.
    California bans following federal immigration laws in violation of the US constitution.
    Why can't they ban foie gras in violation of the US constitution?

  • cc2||

    I know this might not have occurred to the legislators, but if people are offended by how foie gras is made, they don't have to buy it or eat it, just like vegetarians don't eat meat. Who knew?

  • Longtobefree||

    Objection, your honor; irrelevant.
    This is not about the damn ducks. This is about forcing your will on the fools that still believe in freedom.

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