PASADENA, Calif. (CN) - Although gourmands across California rejoiced last year after a federal judge overturned the state's ban on the sale of foie gras, the controversial delicacy may again disappear from California's ritziest restaurants after the Ninth Circuit indicated Wednesday that its production is cruel.
Foie gras - fatty duck or goose liver - is prized for its rich flavor. But animal rights activists have long maintained the market for the delicacy drives poultry producers to cruelly force-feed the birds. During the process – called gavage – large amounts of meal and air are pumped into the bird's stomach through a tube stuck down its esophagus to enlarge its liver to 10 times its natural size.
"Do you think the duck enjoys that?” demanded U.S. Circuit Judge Harry Pregerson at a hearing Wednesday. "I think it's absolutely cruel. The people don't agree with it. They think it's fine to do that so they can have their foie gras."
Calling the force-feeding practice inhumane, California outlawed the sale of force-fed poultry products in 2004, though it allowed foie gras made from birds that aren't force-fed to be sold in the state.
But Hot's Restaurant Group in California, Hudson Valley Foie Gras in New York and the Association des Eleveurs de Canards et d'Oies du Quebec in Canada sued to overturn the ban the day after it went into effect in 2012, arguing that the prohibition on force-feeding conflicts with the federal Poultry Products Inspection Act.
Under the PPIA, only the federal government can decide what ingredients can go into poultry products, and the restaurants argued that California's ban amounted to a regulation on ingredients.
A federal judge agreed, ruling the ban unconstitutional in 2015.
On Wednesday, the restaurants' attorney Michael Tenenbaum reiterated that California's attempt to regulate the ingredients in foie gras is pre-empted by the PPIA.
"The ingredient that they ban and the method are one and the same," he told the appellate panel. "The USDA has said the only way to get the ingredient is by force-feeding."
"We don't have a preemption issue here," Pregerson said, in what could presage the panel's decision.
"The PPIA prohibits states from creating their own ingredient requirements, it doesn't apply to California, which has a ban on how these animals are treated, and they're treated cruelly," he said.
Pushing for reversal, Justice Department Attorney Aimee Feinberg told the panel the PPIA's ingredient requirements don't address animal feeding practices like force-feeding.
"That underscores how the law is not preempted because it deals with entirely different things," she said.
Circuit Judges Jacqueline Nguyen and John Owens also expressed reservations about the plaintiffs' arguments. They contended that California's ban can't be preempted by the PPIA unless there's no other way to obtain enlarged poultry liver for foie gras production than through force-feeding.
Their arguments otherwise "fall apart," they said.
On rebuttal, Feinberg told the panel that, contrary to Tenenbaum's assertion, enlarged poultry liver can be obtained without force-feeding, though she did not say how.
The appellate panel still plans to issue a written decision in the case. Nonetheless, it seemed to have already decided the fate of foie gras in California Wednesday.
"Are there any other situations we know of where the food is rammed down the throat of the creature?” Pregerson asked. "Rammed down. You hold its neck up and just force it right down so that their liver blows."
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