2004 law prohibits sale but not purchase of product from tortured waterfowl
LOS ANGELES, California––Foie gras, an oily spread made from the diseased livers of force-fed ducks and geese, may be legally purchased by Californians, but a 2004 state law prohibits selling it within California, Los Angeles U.S. District Judge Stephen V. Wilson ruled on July 14, 2020.
“Judge says foie gras is legal to eat in California in confusing ruling,” headlined San Francisco Chronicle food writer Janelle Bitker, getting the story half right.
Associated Press and restaurant industry media nationwide meanwhile misreported that “Foie gras could make a comeback as a takeout option [in California, where eat-in restaurants are closed due to COVID-19 social distancing restrictions] after a federal judge ruled the rich dish can be brought in from out of state.”
That would require some creative interpretation of the Wilson ruling, but foie gras producers and sellers have previously tried similar evasions of the stated intent of the 2004 law, and appear to be unlikely to give up soon.
“Both sides declared victory”
Clarified Bay Area News Group reporter Linda Zavoral, “Foie gras can again be legally shipped to Californians for consumption at home, according to the new ruling. But diners won’t find the fatty goose and duck livers back on restaurant menus.”
Wilson ruled, Zavoral explained, “that the sale of foie gras doesn’t violate the law if the seller is located outside of California and the product is brought into the state by a third-party delivery service. However, foie gras still can’t legally be resold — which means restaurant sales are prohibited, according to attorneys for both the plaintiffs and defendants.
“Both sides declared victory after the ruling,” Zavoral added.
Hudson Valley Foie Gras vice president Marcus Henley, representing by far the biggest foie gras producer in the U.S., pronounced himself “gratified” that the court recognized that the California ban does not “apply to foie gras products from out‐of‐state producers.”
HSUS president gratified, too
But Humane Society of the U.S. president Kitty Block emphasized that Wilson “ruled that the state’s foie gras sales ban is entirely constitutional, reaffirming California’s authority to keep cruel products out of its marketplace.”
Responding to “out-of-state producers looking to promote the sale of this cruel product within California,” led by Hudson Valley Foie Gras, “The judge denied their request to strike down the law,” Block blogged, “and warned that the filing of any more similar challenges to the constitutionality of the law will result in court-ordered sanctions.
“The ruling,” claimed Block, “does not change the legal landscape of foie gras sales in California, as some media outlets have erroneously reported. As the court explained, the ruling does not affect sellers of foie gras ‘who are located within California (e.g., restaurants),’ which have been prohibited from selling such products for years.”
The Humane Society of the U.S. [HSUS], headquartered in the Washington D.C. area, was the major proponent of the 2004 California foie gras ban, engineered by Block’s predecessor, Wayne Pacelle.
HFA: “This legislation is a disaster for ducks & geese”
The California-based Humane Farming Association criticized the language of the ban from the beginning, for allowing the foie gras industry a seven-year grace period before taking effect and for including multiple loopholes that have become the subjects of litigation ever since.
“The fact is, anyone in California who wants to buy foie gras can buy it!” Humane Farming Association spokesperson Jill Mountjoy told ANIMALS 24-7. “The animals who are still being tortured for this product don’t care whether their livers are being sold directly or indirectly. They are still being abused and their livers are still being sold to Californians. And, as we have seen in the past, it won’t be surprising to see restaurants not technically ‘reselling’ it, but rather serving/giving it away in various promotions that allow them to skirt the law by not specifically charging for the foie gras itself.
“The bottom line,” Mountjoy alleged, “is that this legislation was a disaster for ducks and geese regardless of this latest court decision. There was never any legitimate reason [for HSUS] to let California’s sole foie gras producer,” Sonoma Foie Gras, “dictate the final language of the bill. It explicitly legalized force-feeding [during the grace period] and kept the company in business for many, many years longer than it otherwise would have been. The owner openly stated that without the bill, he would have gone out of business years earlier. He was actually in the process of shutting down at the time of the bill’s passage. But with it being enacted, he was able to stay in business and torture tens of thousands more animals with the full legal immunity granted to him by the legislation.”
Restauranteur looks forward to advertising foie gras
Los Angeles restaurant owner and chef Manny Kahn appeared to affirm to the California Globe the suspicion that restauranteurs would attempt to circumvent the Wilson verdict.
“We’re all in lockdown again right now,” Kahn told California Globe senior editor Evan V. Syman, “but now we can highlight to takeout customers that we have it back, and when we return to restaurant service, we’ll be seeing customers order it as well.”
Added Minnesota foie gras farmer Regina Olafsson, “California wasn’t really a third of our business before the ban,” contrary to some reports. “It was more like 10 or 15%. But now that we’re allowed again,” Olafsson told Syman, “we expect to see business climb again.”
The portion of the Wilson verdict most encouraging foie gras producers and sellers appears to be the single sentence that, “There is no principled way to distinguish between foie gras purchased out of state and transported into California by the purchaser and that which is delivered by a third party.”
Waterfowl on Amazon
But this language merely allows online companies such as Amazon.com to sell foie gras to California customers, so long as the deliveries originate from out-of-state warehouses.
Amazon.com currently offers for sale 52 brands and varieties of foie gras.
Foie gras is known to have been produced as a purported delicacy in Egypt as long as 2,400 years ago. But the production method, centering on force-feeding confined geese excessive amounts of grain through a tube, was widely recognized as cruel several centuries before the existence of any organized humane movement.
Despite that, foie gras production remained legal almost everywhere when the California legislation passed in 2004. Since then, foie gras production and/or sales have now been banned in the Czech Republic, Denmark, Finland, Germany, Israel, Italy, Luxembourg, Norway, Poland, most Austrian provinces, Turkey, and the United Kingdom.
In addition, a plan to build the world’s largest waterfowl farm and foie gras factory in Jiangxi province, China, was scuttled in October 2012 after Chinese opponents of the project drew international attention to it.
Chicago enacted a foie gras ban in 2006, but failed to enforce it. The Chicago ordinance was repealed two years later.
New York City in 2019 prohibited restaurants and grocery stores from selling foie gras, starting in 2022. Whether that ban can be enforced remains to be seen.
Wilson & the foie gras racket
Los Angeles U.S. District Judge Wilson, meanwhile, has been back and forth over the net many times on foie gras ban enforcement.
Wilson originally found, and a three-judge panel of the U.S. 9th Circuit Court of Appeals in August 2013 unanimously affirmed, that the California ban on the sale of foie gras could be enforced as written.
Led by Hudson Valley Foie Gras, out-of-state foie gras sellers in the 2013 case contended that the California ban is unconstitutionally vague and improperly regulates interstate commerce.
Explained Maura Dolan of the Los Angeles Times, “The companies contended that the law attempted to ban all products made from force-fed birds, including duck meat and down jackets. The 9th Circuit disagreed, concluding the ban was aimed solely at foie gras.”
The plaintiffs then amended and refiled their case.
Poultry Products Inspection Act
This time Hudson Valley Foie Gras, Canadian foie gras producers, and the Hermosa Beach restaurant Hot’s Kitchen argued that the California law was pre-empted by the federal Poultry Products Inspection Act.
The Poultry Products Inspection Act prohibits states from imposing labeling, packaging, or ingredient requirements varying from federal standards.
Wilson accepted that argument, writing that, “California cannot regulate foie gras products’ ingredients by creatively phrasing its law in terms of the manner in which those ingredients were produced.”
Therefore, Wilson on January 7, 2015 permanently enjoined then-California state attorney general Kamala Harris from prosecuting restaurants and stores that sold foie gras from out of state.
U.S. Court of Appeals reversal
The Wilson verdict gutted the California law, then in full effect since July 2012, because it meant that even though California banned the production of foie gras by force-feeding ducks and geese through tubes thrust down their throats, foie gras produced by that method could not be kept off of menus and store shelves.
But the January 2015 Wilson decision was overturned by the U.S. Court of Appeals for the Ninth Circuit on September 15, 2017.
A foie gras industry appeal to U.S. Supreme Court was denied on January 7, 2019, leaving the California foie gras ban in effect.