The Volokh Conspiracy
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Can New York City Ban the Sale of Foie Gras?
New York City and New York state are locked in a battle over sale of the fatty liver delicacy.
This past term the Supreme Court upheld a California law barring the sale of animal products that are not produced in conformity with the state's animal welfare laws, even if the products are produced out of state. A majority of the justices rejected the claim that such a law violated the Dormant Commerce Clause because of its extraterritorial effect.
Politico reports on a similar battle in New York, where New York City is seeking to ban the sale of foie gras, largely because of the manner in which it is produced. (Foie gras involves force feeding ducks or geese so as to increase the fat content in their livers.) Although the conflict arises under state law, some of the underlying questions are similar, as it pits producers from elsewhere (in this case, upstate New York) against a local jurisdiction.
New York City's anti-foie-gras ordinance was set to take effect last year, but it was blocked by the state. That order, in turn, was rejected by a state court, and litigation is ongoing.
One of the central issues is whether, under New York law, a city may adopt regulations that unduly interfere with agricultural practices in other parts of the state. Two farms in upstate New York are the nation's dominant foie gras producers, and New York City is responsible for a disproportionate share of their sales.
From the Politico story:
The New York City Council passed, and then-Mayor Bill de Blasio signed into law, a bill banning the sale and serving of foie gras in November 2019. It was set to take effect three years later, in November 2022, but the New York State Department of Agriculture and Markets ordered the city to foie greddaboudit. The city couldn't implement the ban since it "unreasonably restricts" two foie gras farms' "operations and on-farm practices" under state law, the agency ruled.
The Adams administration sued, and got a taste of victory Aug. 3 when an Albany County judge struck down the state's order blocking the city ban as "arbitrary and capricious." . . .
But the waterfowl war is far from over. La Belle and Hudson Valley Foie Gras, the two duck farms party to the case, filed a notice of appeal Aug. 18.
The state could get another shot at the duck issue too. Albany Judge Richard Platkin's ruling was based on the state's failure to comprehensively review the legislative history of the bill. Instead, he wrote, the agriculture department relied on "two brief quotations drawn from a multi-thousand page record." But he gave the state a second chance by allowing the agency to review the farms' complaints about the law again, and issue a new order based on a more thorough review.
Accoridng to Politico, the conflict is also pitting New York City mayor Eric Adams (who follows a near-vegan diet) against New York Governor Kathy Holchul. It also presents rather common questions about when state law should preempt local ordinances.
For now, foie gras remains on the menu at several New York restaurants. Foie gras cannot be sold commercially in California, however. Under California law, individuals can mail-order foie gras from out of state, but retailers and restaurants may not sell it.
