The phrase in French means “fatted liver” and comes from a goose or duck that is force fed to produce the delicacy. The case is named after the main plaintiff, based in Canada, the Association des Eleveurs de Canards et d’Oies du Quebec vs. Harris.

Harris’ office declined to comment on the filing. But advocates of maintaining the ban were quick to weigh in, beginning with Paul Shapiro, the Humane Society’s vice president of farm animal protection. According to Reuters, he claimed, “California has the right to prevent the commerce in such a cruel and inhumane product.”

That’s anything but certain. As the Los Angeles Times reported, the plaintiffs who challenged the foie gras ban expressed certainty that constitutional law was on their side. They said:

“We’re very confident that the district court’s judgment will be upheld on appeal. The decision was based on the simple fact that, in the field of meat and poultry, federal law is supreme. California does not have the right to ban wholesome, USDA-approved poultry products, whether it’s foie gras or fried chicken. We look forward to having our victory affirmed by the Ninth Circuit Court of Appeals.”

The Ninth Circuit, however, took up the issue before. In 2013, it turned back an injunction by out-of-state farmers to put the California ban on hold until the matter could go through the courts.

That raises the possibility that the ban will be upheld again, triggering an appeal to the U.S. Supreme Court.

Facing federal law

As CalWatchdog.com previously reported, Wilson ruled the ban ran afoul of federal poultry regulations — specifically, the Poultry Products Inspection Act, or PPIA. He wrote:

“This issue boils down to one question: whether a sales ban on products containing a constituent that was produced in a particular manner is an ‘ingredient requirement’ under the PPIA. California cannot regulate foie gras products’ ingredients by creatively phrasing its law in terms of the manner in which those ingredients were produced.”

The ban arose in 2004, after then-State Sen. John Burton, D-San Francisco, introduced Senate Bill 1520. The bill prohibited foie gras from being produced or sold in California, thereby ruling out imports of the fattened-liver delicacy. Wilson’s decision approved the importation and sale of foie gras, but did nothing to alter California’s prohibition on production.

The perils of prohibition

However the legal case against the ban may fare in higher court, observers have taken note of the practical effect of foie gras prohibition. Much like America’s experiment with alcohol Prohibition, 1920-33, banning foie gras appeared to increase Californians’ appetite for what was banned.

As Josh Barro detailed at the New York Times, demand for foie gras rose precipitously both immediately before and after the ban:

“‘We saw an up in volume two years ago when the ban went into effect,’ said Ariane Daguin, chief executive of the specialty food supplier D’Artagnan, which sells to both restaurants and consumers. ‘People wanted to see what the brouhaha was about. Now what is happening is all the chefs who are our friends and have been buying other things from us want to put foie gras back on the menu.'”

What’s more, as Robin Abcarian reported in the Los Angeles Times, fattened liver “never truly disappeared from menus.” Chef Ken Frank, a big foie gras proponent, told Abcarian he “skirted the ban by giving customers foie gras, randomly delivered, he said, with a note explaining the gift was a protest.”

Although he insisted he “went to great lengths not to violate the letter of the law,” Frank himself has been dragged into court by the Animal Legal Defense Fund, which brought suit against him and his restaurant in March 2013.

In 2008, they passed Proposition 2, which mandated more comfortable hatching quarters for chickens. Because of the cost to farmers of expanding chicken coops, a grace period was allowed of six years, to Jan. 1, 2015.

As NBC reported, the extra time allowed farmers time to “invest in operations to make sure that every hen would have at least 116 square inches of space, or about a square foot. One thousand laying hens, for example, now require a facility measuring more than 800 square feet.” That’s about double the space egg-layers enjoyed previously.

Now that the clock has run out on preparation time, egg prices are poised to rise even higher. According to the Associated Press, the cost of breakfast will rise for consumers across the country, not just California:

“The new standard, backed by animal rights advocates, has been criticized by chicken farmers in Iowa, Ohio and other states who sell eggs in California and will have to abide by the same requirements. California is the nation’s largest consumer of eggs and imports about one-third of its supply.”

Nationwide, the market could eventually adjust. UC Davis economist Daniel Sumner told the AP “prices initially could rise sharply this year but he expected them to eventually settle 10 to 40 percent higher in California and return to their normal prices elsewhere in the country.”

That would leave Golden Staters paying a premium that other Americans, with less comfortable chickens, would avoid.

Foie gras

The egg price jump also ties into the ongoing foie gras controversy. As CalWatchdog.com previously reported, for now, foie gras is back on Californian menus.

In a brief ruling that skirted deep questions of constitutional law, U.S. District Court Judge Stephen Wilson held this week that federal poultry regulations “preempt” what was a statewide ban on the delicacy, a rich dish made from the liver of force-fed geese or ducks.

But as Daniel Fisher noted at Forbes, supporters of the ban swung quickly into action. “The Humane Society immediately urged California to appeal the decision to the Ninth Circuit of the U.S. Court of Appeals, which has been friendly toward the state’s extraterritorial regulatory efforts in the past.”

Notably, the activist organization referenced another hot area concerning chickens: eggs.

According to Fisher, the “foie gras ban ran afoul of federal law controlling the ingredients in poultry products, the Humane Society said, while the egg ban involves the process of raising chickens.”

There, the important distinction concerns out-of-state production and in-state consumption. The Ninth Circuit’s ostensible treatment of the foie gras case will turn on its interpretation of the Interstate Commerce clause of the U.S. Constitution.

Faced with a previous challenge to the ban, the Ninth Circuit did not object to the way that Sacramento’s ban on foie gras made it impossible under state law for out-of-state producers to import the food into California. Nevertheless, Wilson held that federal poultry law prevailed over California’s policy.

Different argument

So the Humane Society and other ban defenders want the Ninth Circuit to consider a different argument: California should be able to ban food production that requires what they consider cruelty to animals — even for out-of-state production.

In a case last fall, Judge Kimberly Mueller, of the Sacramento Division of U.S. District Court for the Eastern District of California, held that out-of-state producers of eggs running afoul of California’s new rules lacked “standing” to sue — meaning  the capacity of a party to bring suit in court.

Now the Humane Society and its allies expect to show in-state standing before the Ninth Circuit.

All told, California’s food fight isn’t just set to expand. It’s set to escalate, perhaps even to the national level.

A federal judge has struck down California’s prohibition on foie gras — more than a decade after Gov. Arnold Schwarzenegger signed into law the nation’s first ban on the culinary treat.

U.S. District Judge Stephen Wilson ruled Wednesday that California’s ban on the product violated federal laws governing poultry products.

“This issue boils down to one question: whether a sales ban on products containing a constituent that was produced in a particular manner is an ‘ingredient requirement’ under the PPIA [Poultry Products Inspection Act],” Wilson wrote, referring to the federal law. “California cannot regulate foie gras products’ ingredients by creatively phrasing its law in terms of the manner in which those ingredients were produced.”

A French term meaning “fatty liver,” foie gras is most commonly produced by force-feeding ducks and geese to produce a specially fattened liver. In 2004, state lawmakers approved Senate Bill 1520, authored by then-State Sen. John Burton, D-San Francisco, which banned the production and sale in California.

Burton now is the chairman of the California Democratic Party.

Chefs, foodies rejoice at decision

Chefs didn’t waste any time putting foie gras back on their menus. Within hours of the ruling, according to the San Jose Mercury News, “David Bazirgan of Dirty Habit restaurant in San Francisco had concocted an all-foie gras $60 tasting menu of four courses, starting with oysters poached in foie gras fat and ending with an entree of aged rib-eye steak with seared foie gras and black truffle.”

The case, which was brought by the Association des Eleveurs de Canards et D’Oies du Quebec, Hudson Valley Foie Gras and Los Angeles-based Hot’s Restaurant Group, does not affect the state’s ban on the production of foie gras. Lifting the ban only allows serving foie gras, meaning it will have to be imported.

Although restaurants are allowed to resume serving the delicacy, animal rights groups are optimistic Attorney General Kamala Harris will appeal the decision to the 9th Circuit Court of Appeals.

“The state clearly has the right to ban the sale of the products of animal cruelty, and we expect the 9th Circuit will uphold this law, as it did in the previous round of litigation,” Humane Society of the United States President Wayne Pacelle said in a statement released on the group’s website. “Force feeding is not an ‘ingredient’ of foie gras since foie gras can be produced without resorting to such cruel methods. We are asking the California Attorney General to appeal the ruling.”

PETA threatens restaurants

One animal rights group isn’t waiting for the courts to take further action. The People for the Ethical Treatment of Animals issued a threat to restaurants that intend to serve what it describes as “torture in a tin.”

“A line will be drawn in the sand outside any restaurant that goes back to serving this ‘torture in a tin’ and whoever crosses that line identifies with gluttony that cannot control itself even to the point of torturing animals,” the organization said in a statement. “Foie gras is French for fat liver, and Fathead is the American word for the shameless chefs who actually need a law to make them stop serving the bloated, near-bursting organ of a cruelly force-fed bird.”

PETA’s threats are nothing new. When California’s foie gras ban went into effect in 2012, after an eight-year implementation period, several restaurants circumvented the law by offering the item as a complementary side dish.

That led to a lawsuit filed by the People for the Ethical Treatment of Animals against Hot’s Kitchen for selling a burger that included, according to the Huffington Post’s description of the menu, “a complimentary [sic] side of foie gras.” PETA filed the lawsuit after unsuccessfully trying to persuade the Hermosa Beach Police Department to bust the restaurant.

“No restaurant can act outside the law by illegally selling the diseased livers of abused birds, and PETA will help make sure that this one doesn’t,” PETA general counsel Jeff Kerr said in 2012. “Serving a ‘complimentary [sic] side of foie gras’ is as cruel as it is unlawful.”

Even socialists questioned the ban — or at least, those in the product’s birthplace

Francois Hollande, the socialist president of France, offered to “bring as much [foie gras] as needed to authorities of the country [the United States]” to help convince Sacramento the ban was absurd.

“I think they will listen,” Hollande said in 2012. “We wish we could have more of it here in France, and sometimes cannot, due to lack of purchasing power — I wouldn’t want to deprive the Americans!”

By John Hrabe

In 2004, then-state Senate President Pro-Tem John Burton, D-San Francisco, coined a profane, albeit effective, slogan that helped convince Gov. Arnold Schwarzenegger to sign into law the nation’s first ban on foie gras. A favorite target of animal rights groups worldwide, the French delicacy is created by force-feeding ducks for their specially-fattened livers.

After an eight-year implementation process, the Burton bill finally took effect last July, and with it, spawned a budding resistance movement. From French socialist politicians to an online retailer in Reno and restaurants in Hermosa Beach and Paris, the Foie Gras Résistance is fighting back against California’s draconian law.

Despite the law, gourmet shops, online retailers and restaurants have found creative ways to satisfy epicureans’ desires.  On Dec. 8, one foie gras retailer hosted a “Foie Gras Tasting and Holiday Sales Event” in Reno, Nev.  “Mirepoix USA, formerly located in the San Francisco bay area in California, relocated to Reno, Nev. last October in anticipation of the foie gras ban,” the company explained in a press release for the event.

Complimentary

Restaurants, too, have circumvented the law by offering the item as a complimentary side dish. The infamous animal rights group PETA is hoping to put an end to this tactic. In late November, the People for the Ethical Treatment of Animals filed a lawsuit against Hot’s Kitchen for selling a burger that is served “with a complimentary side of foie gras.”

“No restaurant can act outside the law by illegally selling the diseased livers of abused birds, and PETA will help make sure that this one doesn’t,” said PETA general counsel Jeff Kerr. “Serving a ‘complimentary side of foie gras’ is as cruel as it is unlawful.”

Some critics of the law say its vagueness has made it impossible to bring forward a single enforcement action.

“It’s so vague as to be unenforceable in any manner that comports with constitutional requirements of due process,” wrote Reason magazine’s Baylen Linnekin, who serves as the executive director of the nonprofit Keep Food Legal. “After all, why hasn’t some governmental unit brought even one enforcement action in the state?”

PETA filed the lawsuit after unsuccessfully trying to persuade the Hermosa Beach Police Department to bust the criminal operation masquerading as a restaurant.

“We contacted the Hermosa Beach Police Department, but with a lot on their plates, they haven’t gotten around to the case,” PETA’s Michelle Kretzer wrote on the group’s blog.

If the thought of the police crashing dinner service at a swanky restaurant sounds absurd, you’ll love PETA’s first cause of action for the lawsuit: unfair business competition. Ironically, the California law that drove some businesses to leave the state is buttressed by regulations against unfair business competition. PETA alleges that the free side dish of foie gras unfairly gives an edge to some businesses.

A spokeswoman for the restaurant called the lawsuit an “outrageous” publicity stunt.

“Publicity stunts such as the filing of an outrageous, baseless lawsuit, followed by the issuance of press releases are nothing more than an attempt to exploit the media by stoking controversial flames and are designed to line the pockets of profiteers,” Kelley Coughlan, a representative for Hot’s Kitchen, told Reuters. 

French Socialists Fight the Ban

While California restaurateurs have been crafty in their evasive maneuvers, the most passionate members of the foie gras resistance movement have been socialist politicians in France. It’s not hyperbole to say that the California Democratic Party is more liberal than the Socialist Party of France.

This summer, Socialist president Francois Hollande offered  to “bring as much [foie gras] as needed to authorities of the country [the United States]” to help convince Sacramento that the ban was absurd.

“I think they will listen,” said Hollande, who has proposed a 75 percent tax rate on incomes exceeding 1 million euros. “We wish we could have more of it here in France, and sometimes cannot, due to lack of purchasing power — I wouldn’t want to deprive the Americans!”

No one wants the carbon footprint of a transatlantic flight weighing on a French socialist’s conscience, which is why I traveled to Paris to get the French reaction to California’s ban and taste the French delicacy for myself.

Enjoying Foie Gras in Paris

I sat down with the manager of one of Paris’ most popular foie gras proprietors. In her mellifluous French accent, Lucie Loï, director of the highly-rated Le Comptoir de la Gastronomie, summed up the reaction of the French food community.

“You cannot touch it. You cannot ban it. It would be crazy,” she told me as I washed down a plate of foie gras with a glass of champagne.  Foie gras is considered an important “part of the cultural and gastronomic heritage protected in France.”

I asked Loï about animal rights groups’ characterization that the delicacy is produced on factory farms.

“Foie gras is the product of extreme animal cruelty,” the Humane Society of the United States claims on its website. “Factory farms produce it by force feeding ducks so much that their livers become diseased and enlarged. This causes a tremendous amount of suffering and can make it difficult for the birds to walk and breathe normally.”

Loï vehemently objected. Her business only purchases foie gras from a farm cooperative in rural France.

The French resistance has even spawned a boycott of California wine.

“I call on all the restaurants in France that sell Californian wine to stop doing so in a show of solidarity for our foie gras makers and, more broadly, for all food makers,” urged Philippe Martin, the Socialist president of the general council of Gers, which produces 16,000 tons of foie gras each year.

For those looking to join la Résistance, Le Comptoir de la Gastronomie has international shipping and wide-variety of foie gras products to choose from.

By Joseph Perkins

Josiah Citrin, owner and chef at Melisse Santa Monica, hosted a special seven-course tasting last night at his Michelin award-winning restaurant. Each dish was prepared by celebrated chefs from around the state using foie gras as an ingredient.

The purpose of the culinary event was to call attention to a pending state law, scheduled to take effect July 1, which would ban the sale or use of the delicacy — made from duck or goose liver –throughout California.

“This is low hanging fruit,” said Chef Citrin. It’s “easy to go after the foie gras.”

Indeed, animal rights activists insist that the method used to produce foie gras, French for “fat liver,” is inhumane.

People for the Ethical Treatment of Pets claims that its secret investigation of Sonoma-Artisan Foie Gras, California’s last producer of the gourmet food item, found ducks “crammed a into filthy, feces ridden shed” as well as “barrels full of dead ducks who had choked to death or whose organs had ruptured during the traumatic forced-feeding process.”

So disturbed were PETA’s investigators that they decided to “rescue” 15 ducks.

Citrin says that he and other chefs endeavor to ensure that the food they serve in their restaurants is produced as humanely as possible.

“All the ingredients that I try to use, I really work hard to find humanely-raised animals by farmers who really care about it,” he said.

And so do other chefs around the state, he said, including those who participated in last night’s tasting at Melisse. They are members of  an advocacy group, the Coalition for Humane and Ethical Farming Standards (CHEFS), which opposes the pending ban on foie gras.

Rather than outlaw foie gras, CHEFS argued, in a petition it recently delivered to Assembly Speaker John Perez, D-Los Angeles, the state should regulate its production.

That would include regular monitoring by animal-welfare authorities, raising geese and ducks in cage-free settings, hand-feeding birds by methods that don’t restrict breathing and limits on the fattening birds.

CHEF’s proposal has been summarily rejected by PETA and other animal-rights groups who insist on nothing short of an outright ban on foie gras. They note that the ban was approved by the Legislature in 2004, but that lawmakers gave Sonoma-Artisan Foie Gras, one of the nation’s largest producers of the delicacy, until this year to comply.

Opponents of the looming ban argue that it’s not just about foie gras, but about the very real prospect that a ban on one food over which special interest groups raise objections will lead to similar bans on other foods.

They note that some activist group or another has raised issues about the method used in production of not only foie gras, but practically every other food — meat as well as vegetable — that may be found on California restaurant menus.