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Ninth Circuit upholds foie gras loophole in California

California lovers of French cuisine, rejoice: You can still buy foie gras — from out-of-state sellers only.

(CN) — Californians can still legally buy foie gras online or by phone, as long as it is made out-of-state and sold by a third party, a Ninth Circuit panel ruled Friday.

A ban on foie gras in restaurant menus, however, remains in effect.

Foie gras — duck or geese liver enlarged by force-feeding the bird — is considered a delicacy in France, and according to French law, the dish "belongs to the protected cultural and gastronomical heritage of France." Animal rights groups say the practice is cruel. When the California Legislature banned the production and sale of foie gras in 2004, then-Senate President pro tempore John Burton called it "an inhumane process that other countries have sensibly banned."

The ban allowed for a 7 1/2-year grace period and faced a string of legal challenges. The Ninth Circuit upheld the ban in 2013. Two years later, a federal judge ruled the ban was preempted by federal law but in 2017, the Ninth Circuit stepped in and overruled the lower court. Then in 2020, that same judge, Ronald Reagan appointee U.S. District Judge Stephen Wilson, found California law still allowed online sales of foie gras, as well as orders placed over the phone and via fax machine. Wilson also rejected another challenge to the foie gras ban based on a different legal argument.

Both California Attorney General Rob Bonta and the plaintiffs in the case, three foie gras sellers — the Association des Éleveurs de Canards et Does du Québec, a nonprofit representing duck and geese breeders, Hudson Valley Foie Gras, an upstate New York duck farm which sells foie gras online and Sean "Hot" Chaney, a Southern California-based chef — appealed the ruling. The plaintiffs wanted the ban thrown out while the attorney general wanted a ban on online sales.

The three-judge panel rejected both appeals.

"Because the ban prohibits certain products from being 'sold in California,' the question is not where a seller is located but where a sale occurs," wrote U.S. Circuit Judge Ryan Nelson, a Donald Trump appointee, in the decision. Intriguingly, Nelson added: "The California Supreme Court has not yet decided what constitutes a sale under the sales ban, so we must predict how it would answer the question." In a world of globalization, when some households make online purchases every day, this would seem to be a pretty important issue to sort out.

California's attorney general argued on appeal that a sale occurs when — and more importantly for this case, where — the customer takes possession of the product. The federal judge, meanwhile, had focused on where payment was processed.

The Ninth Circuit reasoned that the purpose of the law was to ban the production and sale of foie gras, and not the consumption or possession of the supposed delicacy.

"Policymakers’ statements about force-feeding and foie gras point to the Legislature’s general intent to prevent complicity in animal cruelty," Nelson wrote. "The sales ban presumably reflects the Legislature’s balancing of those goals with consumer costs."

The panel also ruled against the foie gras sellers, who argued among other things that the ban is preempted by federal law. Nelson and U.S. Circuit Judge Andrew Kleinfeld, a George H.W. Bush appointee, rejected that argument. But Trump appointee U.S. Circuit Judge Lawrence VanDyke thought it had merit, dissenting from that part of the ruling, though he agreed with the court on its decision to allow out-of-state sales.

California's foie gras ban forbids the sale of any product “if it is the result of force-feeding a bird for the purpose of enlarging the bird’s liver beyond normal size." In his dissent, VanDyke wrote that the language of the law amounts to "a statute regulating the process of how foie gras must be made if it is to be sold in the state." There are a few other methods of producing a form of foie gras without force-feeding. But those methods do not conform with the definition of foie gras under French law. The U.S. Department of Agriculture has similar regulations about what can be sold as foie fras.

"In short, the federal government has defined foie gras to mean specially fed and fattened (i.e., force-fed) goose and duck liver, while California has banned the sale of any foie gras produced by force-feeding the bird," VanDyke wrote. "There is no universe in which plaintiffs could follow California’s requirement for acceptable foie gras while also meeting the federal definition of what foie gras is."

Predictably, both sides claimed victory.

“I have said from Day 1 that this ban is not only misguided but also unconstitutional, and I am gratified that judges on the Ninth Circuit are finally recognizing that," said Chef Chaney in a written statement. "I’m also glad that 40 million Californians can continue to enjoy the foie gras products they buy online, and I hope to be able to cook it for them soon again.”

Bonta's office did not respond to a phone call requesting comment. But in a written statement, a spokesperson for PETA said: "California’s ban has triumphed over yet another futile attack by an industry that needs to see the writing on the wall and start developing pâtés made from plants and cultured cells if it wants to survive."

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