9th Circuit Urged to Suspend Foie Gras Ban

LOS ANGELES (CN) - Duck farmers and restaurateurs on Wednesday asked the 9th Circuit to enjoin California from regulating force-feeding of ducks and geese for foie gras.

The Association Des Eleveurs De Canards Et D'Oies Du Quebec et al. sued California last year in Federal Court. Also suing were HVFG (Hudson Valley Foie Gras) of New York, and Hot's Restaurant Group, of California. They claimed the state's bird feeding law should be struck down for vagueness under the Fifth and Fourteenth Amendments, and the Commerce Clause of the Constitution.

They also challenged California's Health & Safety Code section 25892, enacted after Gov. Arnold Schwarzenegger pushed through a bill in 2004 to regulate force-feeding of duck and geese. The law imposes a $1,000 a day penalty on anyone who force feeds birds to enlarge their livers, and effectively bans foie gras in the state.

The law defines force feeding as causing birds to "'consume more food than a typical bird of the same species would consume voluntarily.'"

But the foie gras farmers claimed it "is impossible for anyone to know at what point a particular bird had been fed 'more food' than the bird feeding law allows,'" and that the law fails to offer guidelines based on weight, volume or any other measure.

They also claimed the laws placed "a substantial burden on interstate and foreign commerce. It does this without advancing any local interest (let alone a legitimate one) of protecting the citizens of California - or even of protecting any California duck."

U.S. District Judge Stephen Wilson denied the request for a preliminary injunction last year, finding no merit to the constitutional claims. Wilson found that California had a legitimate state interest in "preventing animal cruelty," and that the public interest weighed in favor of the ban.

On Wednesday, plaintiffs' attorney Michael Tenenbaum, of Santa Monica, urged the appeals court to reverse, under the Commerce Clause.

California should not be allowed to "project its regulatory regime" on foie gras produced out of state because there was no legitimate state interest, Tenenbaum said.

He said farmers stand to lose millions of dollars, that foie gras has been around for "thousands of years" and has been sold for decades in California.

But the three-judge panel asked how else California could legislate for animal cruelty.

Tenenbaum said California usually resorted to a disclosure on the product instead of a ban. He said that if people object to foie gras, they need not buy it.

"No one's forcing you to buy that," he said.

California's Deputy Attorney General Stephanie Zook told the judges the state did not discriminate against out-of-state farmers. If anything, the law was tougher on California's foie gras producers, she said.

California is only saying, "We don't want to participate in sales involving animal cruelty," Zook said. While the law may influence the market for foie gras outside California, that did not mean the state was directly regulating producers elsewhere, she said.

Zook said the law used clear language so that foie gras producers would be under no illusions about which products the law applied to, and which practice California opposes: force-feeding by delivering feed down a tube inserted into a bird's esophagus. For that reason, she argued, it was not constitutionally vague.

Judge Raymond Fisher asked Zook if the state law may apply to other methods to enlarge a bird's liver.

Zook said the law penalized only producers who force-feed birds, and would not apply if a producer naturally enlarged the liver.

During his reserve time, Tenenbaum said the farmers' challenge was not based on discrimination, as Zook had said, but was about California "regulating directly."

Judge Fisher was skeptical, saying the law had only indirect effects on the market for foie gras outside California.

"What if you're dealing with cruelty to animals?" Judge Harry Pregerson asked.

Tenenbaum conceded that while California had a legitimate local interest, the state could not wield the law to tell farmers in other states "how to treat their animals."

Melissa Grant, with Los Angeles firm Capstone Law, also appeared for the amici curiae, the Humane Society Veterinary Medical Association. She asked the court to uphold the ban in the public interest.

"You do not have to force-feed a duck in this inhumane fashion," Grant said.

Judges Fisher and Pregerson were joined by visiting U.S. District Judge Wiley Young Daniel of Colorado.

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