Ap­peals court takes foie gras off the menu in Cal­i­for­nia

Times Colonist - - Life -

LOS AN­GE­LES — A U.S. fed­eral ap­peals court re­in­stated Cal­i­for­nia’s ban on foie gras Fri­day, find­ing that a state law pre­vent­ing sales of the lux­ury liver paté made by force-feed­ing ducks and geese was not pre-empted by fed­eral author­ity to reg­u­late poul­try prod­ucts.

The ban was passed more than a decade ago af­ter pro­po­nents said the process of fat­ten­ing the liv­ers of the birds was cruel and in­hu­mane. The law took ef­fect in 2011, but was blocked by a court in 2015, de­light­ing chefs who wanted to serve the del­i­cacy and lead­ing to protests by an­i­mal rights groups.

While the unan­i­mous de­ci­sion by three judges won’t im­me­di­ately take ef­fect, giv­ing farm­ers and a restau­rant time to seek fur­ther re­view, an­i­mal ac­tivists cel­e­brated.

“The cham­pagne corks are pop­ping,” said David Perle of the Peo­ple for the Eth­i­cal Treat­ment of An­i­mals. “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.”

State law­mak­ers voted in 2004 to bar Cal­i­for­nia farm­ers from force-feed­ing birds with a tube, which is how foie gras is pro­duced. That part of the law, phased in over seven years, was not chal­lenged.

But foie gras farm­ers in Canada and New York and Hot’s Kitchen in Her­mosa Beach, Cal­i­for­nia, tar­geted a sec­ond part of the law that banned foie gras pro­duced out of state from be­ing served in restau­rants or sold in mar­kets.

They ar­gued suc­cess­fully in the lower court that state law was su­per­seded by the U.S. Poul­try Prod­ucts In­spec­tion Act. That law pre­vents states from im­pos­ing la­belling, pack­ag­ing or in­gre­di­ent re­quire­ments dif­fer­ent from U.S. stan­dards.

The main ques­tion was whether the state was ban­ning an in­gre­di­ent or a process.

“It is not the liv­ers that are force-fed, it is the birds,” Judge Jac­que­line Nguyen of the ap­peals court wrote. “The dif­fer­ence be­tween foie gras pro­duced with force-fed birds and foie gras pro­duced with non-force-fed birds is not one of in­gre­di­ent. Rather, the dif­fer­ence is in the treat­ment of the birds while alive.”

A lawyer for the farm­ers said the fight was far from over.

“The rul­ing is dis­ap­point­ing, the rea­son­ing is flawed,” lawyer Michael Te­nen­baum said. “Fed­eral law is supreme when it comes to poul­try prod­ucts, whether it’s foie gras or frozen chicken breasts.”

Hot’s chef Sean Chaney said he plans to con­tinue serv­ing the rich treat un­til or­dered to stop by a court and said the rul­ing was merely “a lit­tle speed bump.”

Among the of­fer­ings are “Lego my foie,” a waf­fle with a dol­lop of paté and maple syrup and a burger topped with the spread.

Te­nen­baum said he would seek a re­view from a full panel of the 9th Cir­cuit and press on to the U.S. Supreme Court if nec­es­sary.

If the ap­peals court re­jects a re­view, the rul­ing will take ef­fect af­ter the case is re­turned to the lower court, where Te­nen­baum can raise other is­sues.

David Levine, an ex­pert in fed­eral court pro­ce­dure at the Univer­sity of Cal­i­for­nia, Hast­ings Col­lege of the Law, said it’s a long­shot that the ban won’t go into ef­fect.

“It’s prob­a­bly the end of the road, but not to­mor­row,” Levine said.

“Foie gras is tor­ture on toast,” said David Perle of the Peo­ple for the Eth­i­cal Treat­ment of An­i­mals. PETA is cel­e­brat­ing the re­cent Cal­i­for­nia rul­ing.

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