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Pate Producer Can’t Duck False Advertising Claims

(CN) - A vegan pate maker - but not an animal rights group - can pursue false advertising claims against a company that bills its foie gras as "the humane choice," a federal judge in San Francisco ruled.

The Animal Legal Defense Fund and Regal Vegan, maker of a vegan pate called Faux Gras, sued New York-based Hudson Valley Foie Gras last year, claiming its marketing constituted false advertising.

They claimed that Hudson Valley's foie gras, produced from the livers of specially fattened ducks or geese, was "cruel and inhumane."

Hudson Valley, which raises ducks only, is the country's largest foie gras producer. Its foie gras, or pate, allegedly sells for $80 per pound.

California banned the force-feeding of birds in 2004, and the measures took effect in 2012. However, the code does not stop out-of-state producers from marketing foie gras in California or shipping it to the Golden State.

Hudson Valley tagged its product as "the humane choice" on its web page, on Facebook and Twitter pages, and in printed marketing materials, according to the plaintiffs.

They said this misrepresents the truth, because Hudson Valley's foie gras is not produced humanely.

U.S. District Judge William Alsup agreed that a case could be made for false advertising.

"When Hudson Valley's ducklings are three months old, they are moved into special feeding barns," Alsup explained in the 12-page ruling.

"There, they are restrained by the neck two or three times a day to be force-fed. The force-feeding involves an 'inflexible, unlubricated tube [that] is forcibly inserted into their esophagi,'" he wrote, quoting the complaint. "A large volume of corn mash is pumped directly into the ducks' stomachs, and the amount increases slightly every day. After about a month of force-feeding, the ducks are slaughtered. Some of the ducks die from the force-feeding before they can be slaughtered, although slaughter is timed to occur just before force-feeding typically becomes fatal."

The animal rights group and Regal Vegan said the process can result in ruptured esophagi, bone fractures, inhalation of food into the lungs and bacterial infection.

"Then, because the ducks are forced to consume an unnaturally large quantity of food, their livers become greatly enlarged, resulting in hepatic lipidosis, which causes liver failure as well as seizures and nervous system impairment," Alsup wrote, again summarizing the complaint. "Finally, the extremely swollen liver may lead to difficulty breathing, severe pain from the liver's capsule stretching, and broken legs as a result of the excess body weight. Because foie gras ducks are not given veterinary care, they may suffer with these injuries and diseases for up to four weeks until they die or are slaughtered."

Regal Vegan argued that Hudson Valley's false advertising encroaches on sales of its vegan Faux Gras, which it deems "undoubtedly humane."

Hudson Valley moved to dismiss, claiming the plaintiffs lack standing and failed to sufficiently plead their false advertising claim.

Alsup found that Regal Vegan has standing as Hudson Valley's business competitor, but the Animal Legal Defense Fund does not.

"A theoretical educational competition for the 'hearts and minds' of consumers is insufficient to give ALDF Lanham Act standing," Alsup wrote, referring to the federal law outlawing false advertising, among other things. "No re-pleading could cure this deficiency."

Alsup also allowed the false advertising claim to proceed, but acknowledged that the definition of "humane" is "hard to pin down."

"In the absence of controlling legislation, related laws may be informative. Congress has addressed the definition of 'humane' twice, both times in reference to the killing of animals," he wrote, citing the Humane Slaughter Act and the Marine Mammal Protection Act.

"Notably, neither of these statutes addresses how an animal must be treated during its life - they both deal with slaughter - and neither of these statutes covers poultry, including ducks."

But they share the requirement that animals be killed in a way that minimizes pain.

Hudson Valley's "humane" claim could be proved false if it's shown to cause ducks an undue amount of pain, Alsup said.

"At this stage in litigation, it suffices that a slogan indicating a product is 'humane' might therefore be subject to a false advertising claim," he concluded.

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