Fans of Foie Gras Can't Topple California Ban
(CN) - California can prohibit the sale of foie gras, the delicacy that animal rights groups decry as the fruit of inhumane force-feeding, the 9th Circuit ruled Friday.
Passed in 2005 but delayed for seven years to allow producers to adjust, Section 25982 of the California Health & Safety Code bans products made from force-feeding a bird to enlarge its liver beyond normal size.
Foie gras is made from duck livers that are fattened through force-feeding. During the process called gavage, a duck or goose is fed through a tube stuck down its esophagus for about two weeks.
The Association des Eleveurs de Canards et d'Oies du Quebec, Hudson Valley Foie Gras, and the Hot's Restaurant Group had demanded an injunction against the law, which they slammed as unconstitutional and vague.
A federal judge had shot them down last year, and a unanimous panel of the 9th Circuit affirmed on Friday, finding that the challenge is unlikely to succeed.
The ruling also dismisses California and Gov. Jerry Brown from the lawsuit, leaving the attorney general as the sole remaining defendant.
At oral arguments in the 9th Circuit in May, plaintiffs' attorney Michael Tenenbaum, of Santa Monica, argued that the state had no legitimate interest in banning foie gras, which has been around for "thousands of years."
In trying to portray the law as vague, its opponents noted question whether the ban applies to all products made from ducks and geese whose livers have been fattened, or only foie gras.
The appellate panel found that the law is "limited to products that are produced by force feeding a bird for the purpose of enlarging the bird's liver beyond normal size," and that it does not apply to duck breasts, down jackets and the like.
This finding also dispatched the plaintiffs' claim that the law would result in a loss of some $5 million a year in "interstate and foreign sales of wholesale foie gras and moulard duck products," according to the ruling.
Claiming that the law violates the commerce clause in various ways also failed to sway the panel, which agreed with the lower court that they had not raised "a serious question on the merits of their claim."
The plaintiffs failed to show, among other things, that the law would negatively affect interstate trade in any way, and neither could they demonstrate that it represents an absolute ban on foie gras in California, according to the ruling.
"Plaintiffs would have us assume, without evidentiary support, that § 25982 amounts to a flat ban on foie gras," Judge Harry Pregerson wrote for the court. "Plaintiffs' declarations do not demonstrate that foie gras may be produced only by force feeding."