Foie Gras Challenge in New York Chucked Out

     ALBANY, N.Y. (CN) - A New Yorker who occasionally consumes foie gras from force-fed ducks or geese lacks standing to seek a ban, a state appeals court ruled.
     "Here, the risk of exposure is minimal and the indication of harm uncertain," Justice John Lahtinen wrote for the five-judge panel in the Appellate Division's Third Judicial Department.
     The Animal Legal Defense Fund Inc. and Daniel Stahlie had sued the state and a handful of foie gras producers in 2012, contending that force-feeding fowl to enlarge their livers and produce the delicacy resulted in diseased animals and tainted food products.
     Stahlie said he was worried that consuming the foie gras might put him at risk for secondary amyloidosis, a serious medical condition that occurs in connection with chronic infectious or inflammatory diseases. It is difficult to treat and has a high mortality rate.
     Citing the Albany County Supreme Court's reasoning in dismissing the case, Lahtinen said "even affording petitioners the benefit of every favorable inference, their allegations regarding an injury in fact to Stahlie are speculative and rest upon conjecture."
     Standing requires that a litigant "have something truly at stake in a genuine controversy," according to the ruling.
     Plaintiffs also have to establish "both an injury in fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated," Lahtinen wrote.
     Stahlie and the Animal Legal Defense had relied on Baur v. Veneman, a 2003 decision by 2nd Circuit, to argue for standing to compel government action when a consumer faces the risk of injury from exposure to a potentially unsafe product.
     But Lahtinen pointed out that Baur "cautioned about 'the potentially expansive and nebulous nature of enhanced risk claims' and reiterated that 'the injury-in-fact analysis is highly case-specific.'"
     Baur identified two forms of enhanced risk standing based on exposure, according to ruling: "uncontested exposure to a potentially harmful substance" and "potential exposure to an undisputedly dangerous contaminant."
     The Baur case, which involved alleged exposure to mad cow, a known serious disease, was an example of the second form, Lahtinen said. The first was seen in another 2nd Circuit decision, Natural Resources Defense Council Inc. v. United States Food & Drug Administration, in 2013, which involved frequent exposure to a cleaning product with an alleged health risk.
     "Succinctly stated," Lahtinen wrote, "in Baur, the risk of exposure was uncertain but the harm was clear and significant, whereas in NRDC, the exposure was manifest and substantial but the harm - while potentially serious - was not certain."
     At best, Stahlie has "occasional exposure to a product that has not yet been connected by any actual case to the purported risk of harm alleged by petitioners," according to the ruling.
     The California-based Animal Legal Defense meanwhile lacks standing because it was simply acting within its "core mission of using the legal system to advance its policy regarding animal cruelty," the court found.
     Standing has been found in "a narrow line of cases" involving advocacy groups when they had to divert resources because of conduct that directly interfered with the services they provided to their constituents, the justices noted.
     But "finding standing under the situation presented here would essentially eliminate the standing requirement any time an advocacy organization used its resources to challenge government action or inaction," Lahtinen wrote.
     Justices William McCarthy, Elizabeth Garry, Michael Lynch and Christine Clark concurred.
     Elizabeth Hallinan of the Animal Legal Defense Fund argued for her group. Andrew Ayers of the state Attorney General's Office represented the state Department of Agriculture and Markets and its former commissioner, Darrel Aubertine.
     David Lenefsky of New York City represented HVFG LLC dba Hudson Valley Foie Gras of Ferndale, N.Y., near Poughkeepsie, one of three producers named in the original lawsuit.
     The other two are the related Bella Poultry and La Belle Farm Inc., also in Ferndale.