Update: This story was originally published on September 22, 2017.
On January 7, 2019, the U.S. Supreme Court announced it would decline to hear a challenge to the lower court’s 2017 ruling, effectively upholding the foie gras ban throughout the state of California. Chefs could be fined $1,000 for serving foie gras, though the penalties don’t appear to be deterring many chefs: Orange Country chef Amar Santana told Nation’s Restaurant News that he has no plans to scrap the ingredient from some of his menu’s most popular dishes: “As soon as I figure out where to get [foie gras] again, the dishes won’t change,” he said.
On September 15, 2017, a panel of three judges on the Ninth Circuit federal appeals court gave us the next chapter in the tumultuous saga surrounding California’s foie gras ban, which has been the subject of controversy and back-and-forth lawsuits since it first went into effect in July 2012. Foie gras, a luxury ingredient historically associated with French cuisine, is made from the liver of specially fattened ducks or geese — a controversial process that inspired California lawmakers to ban the sale or production of the item in the state.
As of right now, foie can be found on restaurant menus throughout California, thanks to a lower court decision in 2015 that struck down the original ban. But late last week, the appellate court predictably reversed that 2015 decision, setting the stage for California to once again enforce the ban on foie gras. The news came to the delight of animal rights groups like PETA — which bragged that “the champagne corks are popping” in celebration – and to the dismay of many chefs.
Whether or not the ban will stick is still uncertain: appeals are pending. In the meantime, chefs and restaurants can continue to serve foie until it is clear that the law will be enforced again. “Nobody needs to take foie gras off the menu tonight and we certainly aren’t,” chef and pro-foie advocate Ken Frank told the LA Times after the court decision. But why does the foie ban keep getting revisited in the courts? And where do Californians wanting to eat foie go from here?
What does the foie gras law say?
The California foie gras law, originally passed in 2004 with a 7.5-year enforcement delay, targets the methods by which foie is produced: Gavage involves force-feeding ducks or geese more food than they would voluntarily eat, normally using a tube that is placed into the bird’s esophagus. The law states that any product made by “force feeding a bird for the purpose of enlarging the bird’s liver beyond normal size” cannot be sold or produced in the state. The law provides for a civil penalty of $1,000 for each violation, and up to $1,000/day for each day the violation continues.
After the law finally went into effect on July 1, 2012, production of foie was officially prohibited in California and restaurants were banned from selling foie gras to customers (some attempted to get around the ban by “giving it away” to diners, to varying effect).
The legal fighting until now
When the law into effect, chefs and foie gras producers went straight to the courts. On July 2, 2012, three groups filed a lawsuit against the state of California, the governor, and the attorney general. These groups — including two non-California foie producers and sellers, and Hot’s Restaurant Group, whose multiple restaurants sold foie gras prior to the ban — filed a motion for a preliminary injunction to stop the law from being enforced.
They argued that the California law was unconstitutional because it violated the Due Process Clause (which requires clarity in laws) and the Commerce Clause (which prohibits states from imposing substantial burdens on interstate commerce). The arguments made by the chefs and foie gras producers were: (1) that the California law’s definition of “force feeding” was vague and failed to give fair notice of what conduct was prohibited; and (2) the law was discriminatory and an attempt by California to directly regulate interstate commerce.
The district court found these arguments unconvincing and ruled that California could continue to enforce the law, and in August 2013, a three-judge panel in the Ninth Circuit Court of Appeals kept the ban in place. (Notably, Judge Harry Pregerson, who wrote the 2013 opinion, was also part of Friday’s panel decision.) Foie gras producers appealed to the Supreme Court, but the Supreme Court declined to take the case.
After losing their appeal, foie gras suppliers and restaurants had to go back to the drawing board. They rewrote their legal pleadings to make the new argument that the ban should be struck down because it clashed with the federal government’s Poultry Products Inspection Act. Under the legal doctrine of preemption, state laws that contradict existing federal law are struck down, so the new argument became: because the federal government already regulated poultry production in the United States, the California ban should be preempted.
In January 2015, the district court judge agreed with plaintiffs, prohibiting the state from enforcing the foie gras ban. After this ruling, foie gras could be sold and purchased in California, but still could not be produced in the state. Chef Douglas Keane of Two Birds/One Stone and Cyrus says now that foie gras “immediately went back on the menus” after that 2015 decision. Many chefs did the same.
But just one month later, the attorney general’s office appealed that decision to the Ninth Circuit.
Which brings us to last week: Ninth Circuit panel judges Harry Pregerson, Jacqueline H. Nguyen, and John B. Owens, by a unanimous decision, strongly rejected the idea that California’s force-feeding law was preempted by federal law. Instead, they found that California had the right to ban the practice on the basis of animal cruelty. “California, like a growing number of countries around the world, has concluded that force fed foie gras is similarly repugnant,” Nguyen wrote, comparing it to eating horse meat. “The PPIA and its preemption clause do not stand in the way of society’s evolving standards regarding animal treatment.”
Where does the foie ban go from here?
The status of the foie gras ban remains unclear. The case was sent back to the district court so that the lower court judge could apply the Ninth Circuit’s decision and move forward with the case. This means that the foie gras producers and restaurants can try a different avenue to again attack the ban with the lower court.
Plaintiffs will likely exhaust all their avenues of appeal. They could appeal to the Ninth Circuit en banc so that a larger group of 11 judges would review the decision, rather than a three-judge panel. There is no guarantee that the Ninth Circuit would grant en banc review: of 1,500 requests for en banc reviews, the Ninth Circuit only hears between 15-25 cases a year (less than 2 percent).
Plaintiffs could also bypass this step and try to go directly before the Supreme Court by filing a petition to be heard. But the Supreme Court accepts only 2 percent of the more than 7,000 cases that it’s asked to consider every year: Odds are that the Supreme Court will decide not to hear the case at all and leave the Ninth Circuit decision, and the ban, intact, as it did in 2014.
The lengthy Supreme Court process could take several months. Meanwhile, chefs and restaurants may continue to serve foie gras until it is clear that the law will be enforced again. At the end of the day, it is likely that the foie gras ban in California will once again be the law.
However, it is doubtful that the Attorney General’s office or other California state agencies have the resources to strongly enforce the ban, or that the penalties will actually deter chefs and restaurants from making foie gras available. The law does not penalize restaurant patrons who order or are served foie gras. In 2006, Chicago passed a short-lived foie gras ban that was overturned in less than two years. Chefs there openly flaunted the ban, and accepted minimal monetary penalties as the cost of doing business. California chefs may take the same approach.
Keane says he plans to serve foie gras when he reopens his restaurant Cyrus, and anticipates that other chefs will keep foie gras on the menu until they know whether California will actually enforce the ban.
Chef Preeti Mistry, of Oakland’s Juhu Beach Club and Navi Kitchen, who calls the ban “misdirected outrage,” predicts the action will actually make foie gras even more desirable to high-end diners: “Any time you ban something, it makes it more exciting and illicit,” she says. “Those that want it are still going to find it, whether it’s foie gras or heroin. That’s just the way the world works.”
Pooja S. Nair is a litigation attorney at TroyGould PC in Los Angeles, where she is a member of the firm’s food and beverage practice. Neither she nor her employer are involved in the foie litigation.
Editor: Erin DeJesus