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Ban Stands: No Foie Gras, Duck Force Feeding in Cal

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By William Peacock, Esq. on September 04, 2013 4:42 PM

Foie gras. It's a delicacy made from fattened duck liver. Typically, the preparation begins with a specially-bred hybrid duck, the Mulard, which is fed copiously for weeks, then, near the end of its life, force fed even more food through a tube.

Some might call force-feeding beyond satiation animal cruelty. Others call it tasty. Either way, it is now illegal in California, thanks to a pair of laws,  Cal. Health & Safety Code §§ 25981 and 25982. One bars the force-feeding of ducks for liver-fattening purposes in California, the other bars the sale of products made as a "result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size."

The plaintiffs are out-of-state duck farmers and an in-state restaurant that formerly sold foie gras. They sought an injunction to prevent the law from taking effect, but were denied by the lower court. Yesterday, the Ninth Circuit affirmed, holding that the plaintiffs' claims, which were of the scattershot variety, had little chance of succeeding.

Vaguery

One of the dozen or so arguments brought by the plaintiffs was that the statutes were too vague. The statute bars "force feeding." How much food is too much, however?

Yes, plaintiffs made that argument with a straight face. We'd venture a guess that the use of a tube to push food into the animal constitutes "too much." That process, known as "gavage," is the exact method used by the plaintiffs and is mentioned explicitly by the statute.

The statute mentions the process explicitly. In fact, the California Code Chapter, 13.4, is entitled, "Force Fed Birds." Yet, they claim it is too vague.

Needless to say, that claim didn't meet the "likely to succeed on the merits" prong that is part of the standard required for an injunction.

Dormant Commerce Clause

Remember this from law school? A state can't pass laws that favor in-state producers over out-of-state producers (i.e., discriminates against interstate commerce). Though not directly prohibited or regulated by Congress, such matters fall into the realm of the dormant commerce clause, a made-up concept, not found in statute or the Constitution, that the Supreme Court devised decades go, and which endures to this day.

Fortunately for California, because there is no unequal treatment here, and no direct restriction on other states' farms or production methods, there is no dormant commerce clause violation. The statue treats in-state and out-of-state duck stuffers equally, and prohibits all sales of foie gras, regardless of the product's origin. And barring sales in California doesn't amount to regulating an out-of-state farmer's production methods, according to Judge Pregerson, as they can still sell foie gras in other states.

Further Proceedings

No injunction doesn't mean outright defeat. The case will continue in district court, while the law, which has already taken effect, will continue to bar duck stuffing.

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