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Court says banning foie gras is not unconstitutional
The courts say California's foie gras ban is legal.
California's ban on foie gras will continue for the foreseeable future, as a federal court has upheld the law making it illegal to sell the livers of force-fed ducks and geese in that state.
The law went into effect in July of last year, and California restaurateurs and out-of-state foie gras producers had challenged it in court, saying the was too vague, as it could be interpreted to mean that all products from force-fed ducks or geese were banned, including meat and pillows stuffed with feathers. The court disagreed, and said the law was not vague at all.
"The plain meaning of [the law] is that it applies only to a product that is produced by force feeding a bird to enlarge its liver," Judge Harry Pregerson said in a statement.
He also said the law did not illegally regulate interstate commerce, as it applied in California regardless of where the foie gras was actually produced.
"Otherwise, California entities could obtain foie gras produced out of state and sell it in California," the ruling said.
According to UPI, the plaintiffs could possibly appeal the decision at a higher court, but the state of California would likely try to have the case dismissed.
Supreme Court upholds foie gras ban in California
Californians will still have to find their foie gras somewhere else.
The U.S. Supreme Court on Tuesday upheld California’s ban on foie gras, refusing to hear an appeal filed by restaurants and foie gras producers in California, New York and Canada, Reuters reports.
Foie gras is made by force-feeding ducks and geese through a tube until their livers grow enlarged where they're then turned into gourmet food. The California law, which was passed in 2004 and went into effect in 2012, bars farmers from force-feeding birds "for the purpose of enlarging the bird's liver beyond a normal size." Possessing the fatty liver or giving it as a gift is legal.
The Supreme Court’s ruling upheld a law that was first proposed by animal rights activists and signed into law by then-Governor Arnold Schwarzenegger.
Animal rights activists, who argue that process of force feeding geese is unnatural, painful and inhumane, are celebrating the decision.
"The Supreme Court’s decision means that the people of California have the right to prohibit the sale of certain food items, solely because they are the product of animal cruelty," said Jonathan Lovvorn, chief counsel for the Humane Society of the United States, in a statement.
"The holding in this case - that states have the right to cleanse their markets of cruel products - is a precedent of enormous consequence for millions of animals," Lovvorn added.
Ninth Circuit Rejects Preemption Argument, Upholds California Ban on Foie Gras
The Ninth Circuit has upheld California’s ban on force-feeding ducks and geese to produce foie gras, finding the state’s law is not preempted by the Poultry Products Inspection Act (PPIA). Assoc. des Éleveurs de Canards et d’Oies du Québec v. Becerra, No. 15- 55192 (9th Cir., opinion filed September 15, 2017). In 2013, the Ninth Circuit rejected a constitutional challenge to the ban filed by the same plaintiffs.
The court reversed a grant of summary judgment in favor of the plaintiffs, who challenged the state’s ban on sales or production of foie gras made from force-fed birds. First, the court held the ban is not expressly preempted by the PPIA because the federal statute’s “ingredient” requirement addresses the components of poultry products, not husbandry or feeding practices, and California’s law does not ban all foie gras—only that made from force-fed birds. “Nothing in the federal law … limits a state’s ability to regulate the types of poultry that may be sold for human consumption,” the court said.
The court also ruled that the PPIA does not preempt the state law under the doctrines of field or obstacle preemption because it does not preclude a state’s role in poultry regulation and the plaintiffs did not show how the state law created an obstacle to the objectives of the PPIA, which are to provide “wholesome, not adulterated, and properly marked, labeled and packaged” poultry products. Additional details about the continuing dispute over force-fed foie gras appear in Issues 497, 542, 550, 554, 584, 587 and 626 of this Update.
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Chefs boil in anger as federal appeals court upholds California ban on foie gras
California may once again scrape foie gras off restaurant plates, after judges ruled in favor of a ban on the delicacy made by force feeding ducks and geese.
The decision Friday by a three-judge panel of the 9th U.S. Circuit Court of Appeals removes a roadblock to enforcing a 2004 ban that has been idled for more than half the time it has been on the books.
Animal rights groups applauded the action, while chefs who serve the dish reacted with anger and confusion.
Ingrid Newkirk, president of People for the Ethical Treatment of Animals, said in a statement that "the Champagne corks are popping."
"PETA has protested against this practice for years, showing videos of geese being force-fed that no one but the most callous chefs could stomach and revealing that foie gras is torture on toast and unimaginably cruel," Newkirk said.
As of Friday night, the foie gras torchon was staying on the tasting menu at Melisse in Santa Monica, said owner and two-star Michelin chef Josiah Citrin.
"I didn't really know it was coming we'll just see what happens," he said. "I enjoy eating foie gras, but it's not going to end what I do. I just don't like being told what we can and can't use."
The Legislature passed the law in 2004 after finding that forced feeding was cruel and inhumane. But it delayed enforcement for seven years so producers could come up with a new method of making the delicacy.
The typical method involves placing a 10- to 12-inch metal or plastic tube down a bird's esophagus to deliver large amounts of concentrated food. When the birds are force fed, their livers grow to 10 times their normal size. The process is "so hard on the birds that they would die from the pathological damage it inflicts if they weren't slaughtered first," California's legislative analyst wrote when the bill banning foie gras was introduced.
Producers and a restaurant that serves foie gras filed suit to overturn the ban on sales. A district judge ruled in 2015 that the state ban illegally interfered with federal law.
Because federal law "contemplates extensive state involvement, Congress clearly did not intend to occupy the field of poultry products," the 9th Circuit said.
The court noted Friday that Italy, the Netherlands, the Czech Republic, India, Luxembourg, Denmark, Finland, Norway, Poland, Israel, Sweden, Switzerland, Germany and the United Kingdom have some form of a ban on forced feeding or on foie gras products.
Marcus Henley, the manager at Hudson Valley Foie Gras in New York, said in an email to The Times, "We will appeal. This process may take months. Until this appeal is completed, the law and the ban are not implemented and foie gras is legal to sell and serve in California."
The challengers will have two weeks to ask a larger 9th Circuit panel to review Friday's ruling, after which the 9th Circuit must decide whether to consider it. That process could take weeks, if not months, attorneys said.
Federal Appeals Court Upholds California Ban On Foie Gras
A dish with foie gras at Petrossian (Photo by foodforfel via the LAist Featured Photos pool)
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No other issue has incensed the California culinary world quite as much as the state's year-old ban on foie gras. Today, lovers of the outlawed delicacy suffered another critical blow.
A U.S. 9th Circuit Court of Appeals in Pasadena upheld California's ban on the French delicacy today in a unanimous decision. The three-judge panel affirmed a district judge's decision not to block the 2012 law, according to the LA Times.
The court rejected an appeal by out-of-state producers of the dish, as well as Hudson Valley Foie Gras, the nation's largest domestic producer. The foie gras producers contended that the ban interferes with interstate and foreign commerce and that it was unconstitutionally vague, possibly leading to a ban on similar dishes, according to City News Service.
Foie gras is created by force-feeding ducks or geese with corn via a system called gavage, which involves shoving a feeding tube down the bird's throat for 10 to 13 days. Many animal rights groups have protested the serving of foie gras on the grounds that it is unnecessarily cruel to the birds.
Meanwhile, many high-end restaurants in Southern California, including Melisse in Santa Monica and Broadway in Laguna Beach, have been openly defiant of the ban. To circumvent it, some restaurants have been giving away foie gras as gifts to accompany other menu items. Ever since the ban went into effect on July 1, 2012, animal rights activists from PETA have been regularly threatening the offending restaurants with lawsuits and protests.
Part of the law dictates that restaurants are to be fined up to $1000 a day if they are caught serving foie gras.
The law was originally created in 2004, but did not officially go into effect until 2012. State officials placed a hold on the ban to allow providers of foie gras to find a more humane way of creating the dish. When none was found, the law went into effect.
Chefs react angrily as federal appeals court upholds California ban on foie gras
Did they somehow change the ban to include all foie gras? I thought they only banned the ones that force fed. There are a few places that make humane foie gras.
I definitely misread that last sentence the first time around.
Served with a nice Chianti and some fava beans, right?
. and my highest rated comment ever is about cannibalism. Never change, Reddit.
I thought humane foie gras was just called duck/goose liver. Isn't foe gras specifically fattened liver from a force fed bird?
Pretty sure there's no way to humanely overfeed the fuck out of these animals. For god sakes, it requires their system to compromise.
"The typical method involves placing a 10- to 12-inch metal or plastic tube down a bird’s esophagus to deliver large amounts of concentrated food. When the birds are force fed, their livers grow to 10 times their normal size. The process is “so hard on the birds that they would die from the pathological damage it inflicts if they weren’t slaughtered first,” California’s legislative analyst wrote when the bill banning foie gras was introduced"
Federal court issues new ruling on California’s foie gras ban
LOS ANGELES – Foie gras can be sold to customers in California if it’s not produced or paid for within the state, a US District Court judge ruled.
Judge Stephen Wilson of the US District Court for the Central District of California found that the state’s ban on foie gras was not intended to be a total ban. It did not address the “possession, importation or receipt of foie gras” within the state. Rather, the intent of the legislation was to prevent force-feeding of birds in California.
“There is no evidence that California intended to completely ban the receipt or possession of foie gras in California, and there is ample evidence that this was not California’s intent,” Wilson said.
So, the sale of foie gras does not violate state law when:
- 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 otherwise).
- Payment is received and processed outside of California, and The foie gas 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.
Wilson noted that the ruling does not encompass situations where the seller is present in California during the sale, or the foie gras is already present in California when the sale is made. And, it’s still illegal for restaurants to serve foie gras.
Hudson Valley Foie Gras in New York, together with an association of Canadian foie gras producers, challenged California's foie gras ban which resulted in the loss of nearly one-third of their sales. Now, these out-of-state producers of foie gras say they prepared to meet California’s demand for foie gras.
“We are gratified that the Court recognized that California’s misguided ban was never intended to apply to foie gras products from out‐of‐state producers that are shipped to happy consumers in California,” said Marcus Henley, vice president of Hudson Valley Foie Gras.
The Catskill Foie Gras Collective, a consortium of duck farms in Sullivan County, New York and Canada announced they will begin selling foie gras online by phone.
“We are very grateful for this victory,” said Sergio Saravia, president of La Belle Farm. “This victory is symbolic that even in the most trying times, if we stand together, we will persevere.”
Foie gras has been a source of controversy because it is produced using gavage, or force-feeding, geese and ducks to create fatty livers. Animal welfare groups argue the practice is inhumane.
On Jan. 6, the Supreme Court ended more than seven years of legal wrangling over the issue when the justices declined to hear the case, effectively killing an attempt to overturn the ban on the production and sale of foie gras in California.
California Foie Gras Ban Upheld by Supreme Court
I wrote about the controversy surrounding foie gras in an earlier post.
There, I explained about the California Statute that banned the production of foie gras by force-feeding or “gavage.”
Since 2013, some proponents of this method of foie gras production have been trying to get this ban lifted, and it went all the way to the Supreme Court.
This week, the U.S Supreme court upheld the California statute and the sale of foie gras produced by force feeding, and indeed, the practice itself is still banned in California.
According to a story in The Dodo:
In 2013, a group of foie gras supporters filed a motion to block the state’s ability to enforce the ban. But this motion was quickly denied. They appealed and were denied again in a higher court, the Ninth U.S. circuit court of appeals in August 2013. 1 Cronin, Melissa. “Supreme Court Says No To Foie Gras, Upholds California Ruling.” The Dodo. N.p., 14 Oct. 2014. Web. 18 Oct. 2014. < https://www.thedodo.com/foie-gras-ban-california-764441121.html>.
The Supreme Court saw it no differently than the lower courts, and they decided that the law was within the state’s authority to enact laws to prevent animal cruelty. This sets a precedent which will surely affect the way food is produced all over the United States.
Many people, only recently exposed to the controversy, do not realize that it is possible to produce foie gras without such methods. If you want to read more about it click here.
I am among those who believes that this practice is cruel, and indeed, unethical. I had included a video on this page, which showed this method of foie gras production that is banned in not only California, but in many European and other countries. Several other states are considering such a ban. The video, which was very graphic and disturbing, has since been removed from YouTube.
Update January 7, 2015: California Foie Gras Ban Is Overturned
As of December 31, 2014 (last Wednesday), the California Foie Gras ban was reversed by U.S. District Judge, Stephen V. Wilson, who ruled that the California law was unconstitutional because it interfered with federal laws that regulate poultry products. The previous argument against the ban, which was unsuccessful, had been based on the ban improperly trying to regulate interstate commerce. In the new hearing, plaintiffs argued, successfully, that California did not have the power to interfere with federally approved poultry products because they’re already covered by the Poultry Products Inspection Act. Under this act, the federal government has exclusive powers to determine what ingredients belong in poultry, making it illegal for California to require foie gras to be made from birds that weren’t force-fed.
Judge Wilson agreed, saying “California cannot regulate foie gras products’ ingredients by creatively phrasing its law in terms of the manner in which those ingredients were produced.”
Although many chef’s are rejoicing over the ruling, it is unlikely it will hold up as the Poultry Products Inspection Act, and the way poultry has to do with inspection of poultry at slaughterhouses and has nothing to do with the way that the poultry is fed. There does not seem to be anything in the Poultry Products Inspection Act which would block a state from banning a product based on animal cruelty concerns. The ban, after all, was based on perceived cruelty at farms. It is hard to see how the Federal Poultry Inspection ACt, which governs slaughterhouses, could supersede this decision. Read the rest of the story in the LA Times.
Foie Gras Banned in California After SCOTUS Rejects Challenge: Will NYC Be Next?
Foie gras is officially banned in the state of California after the Supreme Court rejected the industry’s latest challenge to the ruling. Because of the Supreme Court’s inaction on the matter, the prohibition is finally able to go into effect after years of legal battles.
After passing the legislature in 2004, the state law went into effect in 2012. Foie gras producers in New York and Canada, along with a California restaurant operator, challenged the ruling, briefly overturning the ban. The San Francisco-based 9th U.S. Circuit Court of Appeals reevaluated the ban in 2017 and unanimously agreed to reinstate the ban .
Easily one of the most sadistic things done to farmed animals, foie gras is produced by force-feeding ducks and geese. Workers shove a metal pipe down the throats of the animals , forcing them to ingest more food than they would naturally eat. This process, known as “gavage”, causes the birds’ livers to swell 10 times their normal size. Ducks and geese undergo this cruel procedure two or three times a day, resulting in animals having difficulty walking or breathing and inducing a serious disease known as “hepatic steatosis.” Many animals suffer ruptured organs and die.
In fact, this product is so cruel it has been banned in more than a dozen countries. Amazon recently announced that it would no longer sell foie gras in California after violating a law prohibiting the sale, costing the company $100,000. Postmates announced it would no longer deliver foie gras in April of 2018.
But the country’s largest foie gras producer is still operating right here in New York State.
Multiple investigations by animal rights groups including Animal Equality , Mercy For Animals , and PETA found malicious animal torture including death from force-feeding, ducks hyperventilating as their unnaturally large livers pressed against their lungs, birds with open, bleeding wounds left to suffer in tiny wire cages without proper veterinary care, and fully conscious ducks being shackled upside down and having their throats cut open. One investigation found that a single worker was expected to force-feed 500 birds three times each day.
Horrifying, right? What’s worse is the 2013 undercover investigation by Mercy For Animals was filmed at Hudson Valley Foie Gras in Ferndale, New York. Hudson Valley Foie Gras is currently the largest foie gras producer in the United States.
Former Senator Tony Avella introduced a bill to prohibit force-feeding ducks and geese in 2017 and retailers like Costco, Safeway, Target, Whole Foods Market, and Wolfgang Puck have refused to sell the egregiously cruel product.
It’s time New York City takes a stand. We’re working to introduce legislation that ends the sale of products involving such sadistic farming practices. Help us fight the cruel foie gras industry today .
Foie gras from out of state can now be served in California
Los Angeles &mdash Indoor dining is not currently an option inside restaurants across California due to new shutdowns amid a surge in cases of the coronavirus , but foie gras could make a comeback as a takeout option after a federal judge ruled the rich dish can be brought in from out of state.
California's ban on the delicacy, the fattened liver of a duck or goose, had been challenged in court by out-of-state foie gras producers who said they lost nearly one-third of their total sales when the prohibition took effect.
A federal appeals court eventually upheld the prohibition. But on Tuesday, U.S. District Judge Stephen V. Wilson decided for the plaintiffs, which include farmers in Canada and New York and a restaurant. They had challenged part of the law that banned liver produced out of state from being sold.
Wilson ruled the sale of foie gras doesn't violate the law if the seller is outside of California and the product is given to a third-party delivery service and brought into the state.
"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," the judge wrote.
"We are gratified that the court recognized that California's misguided ban was never intended to apply to foie gras products from out‐of‐state producers that are shipped to happy consumers in California," said Marcus Henley, vice president of New York's Hudson Valley Foie Gras, one of the plaintiffs.
Food & Wine
The California attorney general's office said it was reviewing the decision.
The issue had been simmering in courts for years since lawmakers in 2004 barred California farmers from producing the luxury pate. Animal welfare activists had campaigned for a ban on the grounds that the methods used to produce foie gras are cruel, involving force-feeding a bird a corn-based mixture through a tube slipped down its throat.
Farmers who produce foie gras &mdash meaning fatty liver in French &mdash say the birds are treated humanely and don't suffer during the fattening process.
New York City last year prohibited restaurants and grocery stores from selling foie gras starting in 2022. Chicago banned it in 2006 the ordinance was repealed two years later.
First published on July 15, 2020 / 11:46 AM
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