Judge Rejects Animal-Lovers’ Foie Gras Lawsuit

LOS ANGELES (CN) – The federal government did not violate the law by refusing to ban force-fed foie gras, a federal judge ruled, rejecting a lawsuit from animal rights groups.

U.S. District Judge Otis Wright II granted summary judgment to the U.S. Department of Agriculture, in a lawsuit brought by the Animal Legal Defense Fund and three other groups.

Foie gras, a French term for fat liver, is traditionally made by force-feeding geese or ducks, to fatten their liver before slaughter. Gourmands prize the French invention for its rich taste.

The Animal Legal Defense Fund et al. in November 2007 petitioned the Food Safety and Inspection Service, a division of the USDA, to ban force-fed foie gras as unfit for human consumption.

Among other things, they claimed that people who eat it can develop secondary amyloidosis, or protein deposits in the organs, and that force-feeding, or gavage, causes fatty liver disease in the poultry, rendering them unhealthful under the Poultry Products Inspection Act.

The Food Safety and Inspection Service denied the petition about two years later, finding that force-fed foie gras is safe to consume because the birds’ fatty livers are deliberately induced, not the result of disease. It also found there is insufficient scientific evidence linking foie gras consumption with secondary amyloidosis in humans.

The ALDF, three other groups and three members sued in May 2012, calling the denial arbitrary and capricious. The federal court dismissed the lawsuit a year later for lack of subject matter jurisdiction, but the Ninth Circuit reversed and remanded, finding that an agency’s refusal to initiate rulemaking is reviewable under the Administrative Procedures Act.

Judge Wright delivered a mixed-bag ruling Wednesday, finding that the organizational plaintiffs have standing, but did not show that the government acted arbitrarily.

The USDA said the groups lacked standing because they were not forced to spend money, but challenged an issue that does not directly affect them, and that denying their petition does not frustrate their mission because it is only one of their many animal welfare causes.

Wright disagreed, pointing out that the groups have spent more than a decade trying to eradicate force-fed foie gras. Since the government’s denial of their petition directly affects them, it is thus the “personalized injury that ‘forces’ the organization(s) to spend money to alleviate the frustration,” he wrote.

The individual plaintiffs, however, do lack standing because their claim rests solely on possible future injury rather than actual past or present injury.

Since all three individual plaintiffs avoid the product, the likelihood that they will eat it, even unintentionally, is not enough to transform their fear of injury into an impending threat.

The government found more success on the merits, having backed up its decision with scientific facts.

The government said that a fatty liver in poultry, or hepatic lipidosis, is the expected physiological response to force-feeding, whereas a liver fattened by disease is often accompanied by inflammation and hemorrhaging. In that case, the bird would be condemned as unfit for human consumption.

Though the plaintiffs said that is not a scientifically valid distinction, the court must defer to the agency’s scientific conclusions, especially “where, like here, the agency’s reasoning is not totally implausible,” Wright wrote.

As for secondary amyloidosis, the USDA properly rejected a study asserting a connection between human consumption of force-fed foie gras and the onset of the disease because the study experimented on mice genetically engineered to be susceptible to the disease rather than on humans.

“Plaintiffs simply highlight the study’s findings about the link between foie gras and secondary amyloidosis in mice, and then state that this should be enough for FSIS [Food Safety and Inspection Service] to conclude that foie gras is also ‘unhealthful’ for humans to consume. This is insufficient under the deferential standard of review for denials of rulemaking petitions,” Wright wrote.

Finally, arguments that the agency improperly ignored a slew of other health conditions apparently caused by force-feeding, including septicemia or toxemia, fail because the groups did not mention them in their petition.

“While this and the other issues may have been lurking somewhere in the 1,150 pages of exhibits that petitioners submitted to FSIS, the court can hardly fault FSIS for not scouring the exhibits and addressing possible issues that plaintiffs would later deem important enough to ferret out on judicial review,” Wright wrote.

The Department of Justice declined comment.

The attorney for amicus group Hudson Valley Foie Gras, Daniel Cross, did not immediately return emailed requests for comment Friday.

Plaintiffs included Farm Sanctuary, Compassion Over Killing, and the Animal Protection and Rescue League.

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