Judge Lifts California Ban on Out-of-State Foie Gras

Foie gras producer Robin Arribit force-feeds a duck with corn in La Bastide Clairence, southwestern France, on Dec. 8, 2016. Foie gras is back on the menu in California after a judge ruled the rich dish can’t be prevented from being brought in from out of state. California’s ban on the delicacy, the fattened liver of a duck or goose, was challenged by out-of-state producers. An appeals court upheld the ban, but on Tuesday, a judge ruled for the plaintiffs, including farmers in Canada and New York. (AP Photo/Bob Edme, File)

LOS ANGELES (CN) — The French delicacy foie gras got a second life in California after a federal judge ruled the dish can be imported from out of state despite the Golden State’s ban.

The dish of fattened duck or goose liver has been at the center of lawsuits by meat producers after California banned force feeding the birds and the sale of foie gras in 2012.

In 2015, U.S. District Judge Stephen V. Wilson ruled that federal law pre-empted California’s law but was overruled on appeal by the Ninth Circuit. The back-and-forth continued when the U.S. Supreme Court declined to take up the case and it was kicked back down to the lower court in January 2019.

On Tuesday, Wilson served up a ruling that said California’s health code does not bar out-of-state foie gras producers from sending the meat to California, essentially lifting the ban.

“There is no evidence that California intended to completely ban the receipt or possession of foie gras in California, and there is ample evidence that this was not California’s intent,” Wilson wrote in a 7-page ruling granting summary judgment to the meat producers. “Of course, once the foie gras reaches California, it cannot be resold within the state, even if the transaction processes “out of state” via an explicit agreement or otherwise.”

The state had argued this creates an “absurd” scenario, but Wilson found there is a difference between making a transaction out of state and allowing delivery of what was purchased, and selling a product in California.

“Further, the distinction cannot turn on whether the recipient is a California citizen, resident, or visitor without implying broader constitutional principles not briefed or suggested by either party,” writes Wilson.

On the plain language of California’s statute, Wilson found the law is not violated when the seller is outside of California, the foie gras purchased is not in California at the time of sale, the transaction is processed and paid for outside the state and the foie gras is given to the purchaser or a third-party delivery service outside of California.

California Attorney General Xavier Becerra’s office said it is reviewing Wilson’s ruling.

Plaintiffs include the Canadian nonprofit Association Des Eleveurs De Canards Et D’Oies Du Quebec and Hudson Valley Foie Gras of New York.

The foie gras ban is not the only food-related California law being challenged by out-of-state producers. Meat producers have sued the state over voter-approved requirements for the humane treatment of egg-laying chickens, breeding pigs and calves raised for veal.

A federal judge in that case denied the producers’ request to block the law. A Ninth Circuit panel heard the producers’ appeal in June but have not yet ruled.

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