(CN) - The continued sale of foie gras in California seems certain after a Ninth Circuit hearing Wednesday in which judges focused on health concerns and whether consumers are able to avoid the controversial delicacy.
"To go forward with this case, we need to see that it really isn't practical for them to avoid eating foie gras, because it is so pervasive," Judge Michelle Friedland told Morgan Hector, an attorney for the Animal Legal Defense Fund.
Friedland and two other Ninth Circuit judges held the hearing at the University of California, Los Angeles. Hector said one of his clients is a corporate attorney who attends many events where they serve foie gras, the fattened liver of a goose or duck, but that it's not apparent whether the foie gras served is from force-fed fowl.
Friedland asked why that testimony is not already in the record.
"We would need menus or caterers' statements about what ingredients they use," the judge said. "She would actually have to show evidence that when she goes to these events that foie gras is served, that it is not visible and it is not labeled."
Hector said his client could flesh out her statements and possibly provide the necessary evidence, but puzzled the judge by noting that two of his clients will continue eating foie gras.
"That seems like a bizarre argument to me," Friedland said. "If you are choosing to eat foie gras, you broke the chain of causation that says someone else is harming you because of foie gras. I don't understand that argument at all."
Hector likened the argument to prior cases involving red meat and soap contents that some people might think cause them harm.
"That's so different," Friedland responded. "Everywhere you go, there's antibacterial soap. We probably have it in the bathroom here. We can't find other soap once we are here. That's really different than foie gras."
Judge Mary Schroeder suggested avoiding force-fed foie gras would be similar to avoiding foods containing gluten, but easier, as foie gras generally is a high-priced food and not often served.
"Are your clients really rich?" Schroeder asked. "Foie gras is pretty expensive."
Hector said he did not know.
Judge Girdhari Chhabria said the matter before the court was simply one of choosing whether to eat foie gras when made available, and that if consumers choose to eat the foie gras, that is their responsibility.
Hector countered that there is precedent protecting people from having to abstain from a legal activity out of concern about potential harm they face.
The judges said the ALDF is arguing for a different outcome.
"But if you got your way, they would still be forgoing foie gras, because you're trying to get foie gras banned," Chhabria said. "So, they're forgoing something that they think should be banned."
"Well, they're not forgoing it; they're choosing to eat it," Friedland interjected. "It doesn't even make sense.
"The injury that they say they want to stop, they are incurring voluntarily. And if you won, then they couldn't eat it at all - but they say they want to keep eating it."
Hector said there are noticeable differences between force-fed foie gras and foie gras from birds that were not force fed, but the attorney proved unable to cite specific health risks.
The judges pointed out the ALDF's complaint seeks a complete ban on foie gras, but Hector said the intent is only to ban foie gras made from force-fed ducks and geese.
Justice Department attorney John Koppel, representing the U.S. Department of Agriculture, said the activist plaintiffs failed to demonstrate an injury and that their claims are too speculative.
"They have had their chance to show an adequate injury of fact, and they haven't done that," Koppel said. "I don't see how they could supplement this in a way that would provide an adequate injury in fact."
There must be a "concrete showing" of a likelihood of an injury, but the ALDF here has only made conclusory assertions that they face a threat, Koppel added.
He noted their only support is a medical study that suggests only a need for further study.
Chhabria said the proof of injury need not be conclusive. It would be "kind of a dangerous road for us to go down to be assessing scientific evidence to decide if it leaps over a certain hurdle for purposes of determining whether the risk is significant enough," the judge said.
Organizations rather than the individuals would have a stronger argument for claiming an injury and standing, based on their respective organizational missions, which they claim includes human health concerns, Chhabria suggested.
During rebuttal, Hector said his clients meet the standard for causation since foie gras would not be on the market but for the failure to issue a regulation.
Friedland said a ban goes too far.
"We're talking about a rare luxury product," Friedland said. "If it's easy to avoid, then we expect people to at least engage in some minimal effort to avoid it before we ban the product for everyone."
Hector said there is no exception for "high-level or elite" products versus easily available ones, and suggested it is "impractical" to "put the onus on the consumer" to determine whether or not foie gras is the force-fed variety or not.
Though California banned restaurants from serving foie gras in 2012, U.S. District Judge Stephen Wilson overturned the state law earlier this year, saying it violated the U.S. Poultry Products Inspections Act, which regulates poultry products and has precedence over state laws.
Three animal rights groups along with the ALDF and four individuals brought the appeal.
The ALDF filed suit anew, this time in San Francisco, on Thursday. In the new federal lawsuit, the ALDF says that the U.S. Department of Agriculture has failed to respond to its petition to exclude foie gras based on "toxins" that it says adulterated the product.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.