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Free Minds & Free Markets

The Supreme Court's Decision To Duck a Foie Gras Case Is Bad News for Food Freedom

SCOTUS' decision not to hear the case could lead to a vicious food fight between the states

The U.S. Supreme Court announced Monday it would not (yet) hear an appeal in a case challenging California's unconstitutional and much-reviled foie gras ban. The case will now head back to U.S. District Court.

The Supreme Court's decision is a temporary setback for foie gras producers, chefs, and others fighting the law. They've vowed to continue their efforts. Michael Tenenbaum, who represents the plaintiffs in the case, told me this week that he and his clients look forward to proceeding with the case and that they're confident they will prevail. I am, too.

Meanwhile, though, restaurants and others in California that serve foie gras could face fines of $1,000 for any violation of the law.

Animal rights groups applauded this week's Supreme Court decision. PETA called the denial of cert. a "victory for animals [that] follows tireless efforts from animal rights activists to oppose the archaic foie gras industry."

The Animal Legal Defense Fund hailed the decision as "a landmark moment for ducks," incorrectly labeling the Supreme Court's actions a "death knell" and "the foie gras industry's last appeal."

But supporters of foie gras, the Constitution, and food freedom were disheartened by the Court's action.

Culinary leaders—from California chefs to French foie gras producers—are aghast. I am, too. Earlier this year, I wrote and submitted an amicus brief in support of the petitioners in this case—foie gras producers and sellers—on behalf of both the Reason Foundation (the nonprofit that publishes Reason) and the Cato Institute, in which I urged the Supreme Court to take up the foie gras case.

(I won't rehash the legal arguments here. Those interested in learning more may do so by reading my April column on the amicus brief, the brief itself, and my other earlier columns on foie gras over the years.)

"We noted in our brief that Thomas Jefferson and James Madison opposed bans on various types of foods and liquors as 'lunacy' and 'despotic,'" says Manny Klausner, a former editor of Reason, a Reason Foundation co-founder and board member, and attorney who joined me on the Reason/Cato amicus brief. "The Supreme Court's denial of cert. is a sad occasion for those who support Free Minds and Free Markets."

"The Supreme Court laid an egg with its decision not to review California's foie gras ban," says Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute, who, like Klausner, joined me on the Reason/Cato brief. "I'm not a big fan of the stuff myself—I prefer goose liver pate—but reasonable people should be able to disagree on matters of good taste without running afowl of the law. Nanny statism is for the birds!"

In the amicus brief and elsewhere—including this O.C. Register op-ed last year—I've argued that the implications and reverberations of the foie gras case extend well beyond foie gras and could ensnare almost any conceivable animal product, including beef, pork, and chicken.

The concerns I expressed then are even more apparent today given that the Supreme Court—also this week—rejected challenges to two separate animal-rights laws in Massachusetts and California that, just like the foie gras ban, serve as unconstitutional impediments to interstate commerce in animal products. (The laws, while different from one another, restrict the ability of farmers to cage egg-laying hens and other livestock.)

Interfering with interstate commerce is exactly what these laws intend and what they do. Consider that a poll (much touted among animal-rights groups) last year found nearly half of respondents want to ban slaughterhouses and so-called "factory farming." A full one-third of Americans, the poll claims, want to ban all livestock farming. Period. A ban on livestock farming would mean that nearly all animal-derived foods—from prime rib to pork chops, bacon, and chicken McNuggets—would disappear for good.

Again, that's by design. A Vox piece in November that discussed a new book, The End of Animal Farming, details how the book "lays out the steps, over the next century, to end the farming of animals."

(Notably, Americans ate record amounts of meat last year, while rates of veganism and vegetarianism continue to stagnate.)

But there's more. With the foie gras ban and the Massachusetts and California animal-rights laws allowed to stand—for now, at least—I have little doubt that other U.S. states where livestock farming and exports of animal products play a leading economic role will find creative ways to retaliate against California and Massachusetts. Animal rights supports might not like these laws so much. Lawmakers in a state impacted by California's animal-rights laws, say, might pass a law that says all eggs sold in their state may come only from caged hens. (Any old justification would do, but let's go with the food-safety argument that they're more hygienic than eggs from free-roaming chickens.) Such a law would effectively spell the end of California egg exports to that state.

Or, as I suggested in a 2014 column, states concerned about the environmental challenges and consequences of growing foods in drought-prone areas might pass a law that no food or beverage sold in that state may be produced in a drought-stricken or -prone region. Farmers in California—America's largest agricultural producer by far, but also one of its most drought-prone states—would be out of luck. So, too, would the winemakers and beer producers who contribute hundreds of billions of dollars to the state's economy. But such a law would be a tremendous boon for foods and beverages produced in other states and in foreign countries. The law would also carry a false veneer of green lawmaking that would be sure to drive California policymakers mad.

Would I approve of laws like these? Hell no. Not ever. That's one reason I'm frustrated by the Supreme Court's failure to take up the trio of food freedom cases this week. It increases chances we'll see more such laws (and the inevitable legislative reprisals), and that cycle will harm consumers, farmers, interstate commerce, and businesses of all sizes.

What's next for the challenge to California's foie gras ban? Well, the case has taken years already to wind its way through federal court. The suit was first filed in U.S. District Court in 2012, the day after the foie gras ban took effect. That court granted summary judgment, striking down the ban. But the Ninth Circuit Court of Appeals reversed the District Court's ruling in 2017. Now the same U.S. District Court will hear the case.

Federal legislative solutions are wanting. A bill that would strike down state bans on interstate commerce such as those in California and Massachusetts has gone nowhere, thanks largely to the fact that its sponsor is unapologetic racist Steve King (R-Iowa).

I don't care if a person eats foie gras or hates it like the devil. I've taken an active role defending the rights of vegan groups and others when government unconstitutionally restricts their rights in favor of meat producers. Why? Because the Constitution protects every person's right to eat meat or vegetables (or both!) with equal vigor. Any day now, courts must recognize this simple fact.

Photo Credit: Benoit Tessier/REUTERS/Newscom

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  • SQRLSY One||

    The Supreme Court's Decision To Duck a Foie Gras Case Is Bad News for Food Freedom, yes, this is true...

    However...

    This decision also gooses food fascism!

  • Ray McKigney||

    Quit yer squawkin'.

  • Brian||

    Chicken.

  • Get To Da Chippah||

    Wherein only the pheasants suffer.

  • a ab abc abcd abcde abcdef ahf||

    The pheasants are molting.

  • SQRLSY One||

    ...a new book, The End of Animal Farming, details how the book "lays out the steps, over the next century, to end the farming of animals."

    OK, yeah, prepare for unintended consequences, when meat is outlawed!

    Government Almighy goes too far, and mandates no-meat diets, which many people disagree with, just like the War on Drugs today…

    Then there will be underground, makeshift, amateurish animal-killing-and-butchering shops, where the animals will be treated far less humanely than they are today! (Thank You Do-Gooders!!!)

    You will not be able to let your cat or dog wander through the bushes in your own back yard, for fear of meat-hungry lawbreaking pet-snatchers!

    (But, Meat-Hungry Lawbreaking Pet-Snatchers would make an MOST EXCELLENT name for a garage band!)

  • Earth Skeptic||

    Soylent Green.

  • Sevo||

    Dunno why this hasn't even gotten a mention, but those with TDS are becoming a serious threat:

    "FBI said to have opened a probe into whether Trump was compromised by Russia as president defends Comey firing"
    [...]
    "Federal investigators, alarmed by President Donald Trump's behavior in the immediate aftermath of his firing in 2017 of former FBI director James Comey, opened a probe into whether the president had been secretly working with Russia, The New York Times reported late Friday.
    Citing unnamed sources familiar with the investigation, the publication said that counterintelligence officials weighed whether Trump's actions were undermining national security, and whether he was either working at the behest of Moscow, or was somehow influenced by the Kremlin."
    https://www.cnbc.com/2019/01/11/nyt-fbi-
    said-to-have-probed-whether-trump-
    was-compromised-by-russia.html

    It's been obvious that FBI agents were 'biased', shall we say, but that outfit is in need of a serious shakeup. OBL gets laughed at for that sort of idiocy for good reason.

  • a ab abc abcd abcde abcdef ahf||

    If Trump had been half the Russian traitor they claim to be investigating, they'd have found a dozen smoking guns by now.

    The Constitution already has a means of indicting and firing a President. This special prosecutor stuff is ridiculous. Letting it turn into a multi-year fishing expedition just gilds the lily.

    What next, a Constitutional amendment that the election loser is appointed "Special Fisher" for four years? Will there be a "Vice Special Fisher"? Will there be rules of succession for Special Fishers from minority whips?

  • Sevo||

    And under what claim of suspicion was the investigation instigated? That he fired Comey?
    WIH has Trump ever done top suggest that the Russkis somehow 'controlled' him, other than beating that miserable hag in the election.

  • Ray McKigney||

    other than beating that miserable hag in the election

    Isn't that evidence enough? There's just no way he could have beaten the most qualified candidate in history on his own.

  • Sevo||

    "Isn't that evidence enough?"

    I guess the FBI thinks so...

  • PaulTheBeav||

    I'm a meat eater. I don't think there's anything wrong with using animals to satisfy our needs. That being said, I am very much against unnecessary animal cruelty. I used to love foie gras until I learned how it was made. It's a process very different from how animals are usually raised and harvested. It's definitely crueler than most people might imagine.

  • a ab abc abcd abcde abcdef ahf||

  • Sevo||

    PaulTheBeav|1.12.19 @ 10:05AM|#
    "I'm a meat eater."

    Yeah, and don't bother me with laws telling me what I can eat.

  • Chipper Morning Baculum||

    You can't eat people, Sevo.

  • Longtobefree||

    You can as long as they provide ongoing positive consent.
    Or did you mean consume people?

  • SQRLSY One||

    Not in Germany you can't!

    The Germans have a sad history of not supporting full freedom of contracts, though...

    One does not have the "personal freedom" to contractually allow oneself to be killed and eaten. This has been legally established now, in Germany, at least.

    See http://www.theguardian.com/wor.....ukeharding ... Names were Meiwes and Brandes... Legal consent was all drawn up. "Victim of cannibal agreed to be eaten"... That eats me up pretty badly!

    But you know those Germans! They have a bad history of sometimes strangely restricting your personal freedoms!

  • PaulTheBeav||

    I have no interest in what you eat. My concern is about cruelty to animals that goes far beyond what is normal for for the production of most animal products. I would have no worries about foie gras that was made from livers of birds that were treated similarly to how chickens and turkeys are treated on a typical farm.

  • ||

    "I'm for free speech but...."

    Good for you you're a meat eater with a yeah but.

  • Duelles||

    There is a great foie gras farm in the Hudson Valley. The foie gras ducks live there. It's not all as bad as PETA would have you think.

  • Earth Skeptic||

    Don't the fucktards at PETA realize that if they end all livestock farming they will end all livestock?

    Unless of course they manage to get the vote for animals, and convince them to support a communist system that requires farmers to run their opertations like Club Med for cows and chickens.

  • SQRLSY One||

    And then all animals will be equal, but some will be more equal than others? And the pigs will live in the farmer's farmhouse, and drink fine liquor and smoke cigars?

    Hey man, I think we could write a story about that!!!!

  • Rich||

    get the vote for animals

    Why stop there? Let animals run for elective office! It's their turn!

  • Longtobefree||

    Well, there are already enough turkeys in congress; we would have to have some kind of quota system.

  • Bubba Jones||

    Yes. They know.

  • Rich||

    The (October 2017) "full report" from Sentience Institute claims 68.8% agree that "The factory farming of animals is one of the most important social issues in the world today."

    Uh,huh. All those people could be thinking "If only factory farming of animals were increased 100-fold we could eliminate the social problem of global starvation."

  • a ab abc abcd abcde abcdef ahf||

    I bet if you asked 100 people what "factory farming" meant, 90 would say it involved a building with machines hooked up to feed animals and clear out the shit without human involvement.

  • EscherEnigma||

    Global starvation is a problem of logistics and economics, not of food production.

  • Marcus Aurelius||

    Well, also IQ...

  • mrdane||

    In a free-enterprise, consumer-regulated market, those that prefer holistic farming techniques are free to express their preference with their dollars and producers are free to respond.

  • Hank Phillips||

    With mystical bigotry is busily seeking to force women to increase the population my MORE than the current 150 people per minute, it's going to take forever to get me to deflect time from the defense of individual rights to worry about food animals. That said, the practice of beating birds and terrapins to death to enlarge their livers for paté is what many folks oppose to the point of stumping for legislation. Eliding this, and changing the topic to force-feeding is not gonna fool any of those activists. They will rightly see it as a cowardly evasion.

  • Unicorn Abattoir||

    The Supreme Court's Decision To Duck a Foie Gras Case

    Funny.

  • ||

    We really need to stop giving so much attention and power to activists. They mess things up more than help and threaten progress. Take Trudeau's decision to nationalize a pipeline that already was going to be paid for by PRIVATE money. What a complete mess and not surprising since he's a remedial ideologue with the IQ of lint:

    https://www.youtube.com/watch?v=mlzjSHL22ko

  • Longtobefree||

    *lint is triggered, and runs screaming from the room*

  • JEB01||

    Wouldn't a more direct legal solution to challenge the law simply be to pass a law banning imports (or a selected category of imports) from any state that bans foie gras?

    In other words, don't try to pass a different import restricting law, but rather if CA's law is legal (banning imports of foie gras), why isn't also banning imports from a state that bans the imports OK?

    Seems to get to the heart of the Commerce Clause issue that the Supreme Court chose not to address.

  • Intelligent Mr Toad||

    Let's pass a law saying everyone MUST eat fois gras!

  • Echospinner||

    I checked the Duckitarian website. They are not sure how to respond to the ruling. They did want to remind us all that it is rabbit season, not duck.

  • Sevo||

    "They did want to remind us all that it is rabbit season, not duck."
    And depending on alcohol consumption among the hunters, they cows might be nervous.

  • SQRLSY One||

    "...cows might be nervous."?

    I am told that in the days of old, men were men, and sheep were afraid!

    I could see that maybe the cows would be afraid as well, along with the sheep...

  • Sevo||

    You're missing the point:
    Dear ol' Ma wouldn't let us out at the start of rabbit season; too many hunters, too much booze, too many 'mistaken' identities as a 'rabbit'.

  • Duelles||

    Governments interfere with people. Back in the 1950s dairies were required to buy a large tank and pump all milk from their cows into said tank eliminating the smaller 3 gallon tanks. If bacteria was found in a small tank the milk from two or three cows was wasted. However any bacteria in the large tank ruined an entire herds milk production. The government has not stopped fucking up what people do.

  • Rev. Arthur L. Kirkland||

    How many people who approve foie gras production and harsh livestock practices support preventing others from eating dogs? Cats? Horses? Cows? Pigs? Kittens? Puppies? Ponies?

    What about killing a dog that menaces a person, or trespasses, or damages property? Or putting down strays, including unlicensed dogs and cats?

    Principles can be tough. Much like the dog meat that has been enjoyed around the world for centuries.

  • n00bdragon||

    There is a reason ducks don't have human rights; because like all non-humans they aren't human. I know that sounds like a bit of a tautology, but apparently it needs to be restated. "Animal Rights" is a stupid and squishy attempt to apply human rights to animals, but it's deeply flawed because animals don't actually have any rights. There is no right to be fed or not fed, there's no right to live freely, there's no right not to be eaten because, again, animals don't have rights. What there is, currently, is a bunch of weird and insane laws against specific human behaviors that deal with specific animals for specific purposes. Note the difference: California has a ban on making and selling Foie Gras because it doesn't like the way ducks are fed to make it, but actually feeding ducks that way is not illegal. If I fatten up a duck and then don't make it into Foie Gras that's apparently okay in the eyes of California but if I wave a magic wand to conjure into existence from nothing a suitably fattened duck and then make foie gras out of it that's illegal. Do you see the insanity here?

  • Redliana||

    Factory farms are concentration camps for animals and the sooner they are banned the better. Anyone that eats Foie Gras deserves to be treated the same as the ducks, just as veal eaters should be locked in small cages without the ability to move for a few months and then slaughtered. This would be just.

  • Thrackmoor||

    Are you a troll or are you being sarcastic? The font does not indicate which of the possibilities is true.

  • Marcus Aurelius||

    Irony in believing in free speech applying to what you eat, but not what you say (Steve King comment).

  • EscherEnigma||

    King is free to say whatever he wants. And everyone else is free to recognize him for what he is and treat him accordingly.

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