No Foie Gras for You: Court Upholds Ban on Sales

Not that you've been eating it, but you still can't: A federal appeals court in San Francisco today refused to block California's ban on foie gras.

A panel of the 9th U.S. Circuit Court of Appeals upheld a decision by a federal trial judge in Los Angeles to decline to grant a preliminary injunction halting enforcement of the law.

The measure, which went into effect on July 1, 2012, bans the sale within California of what some consider a delicacy, made from the livers of force-fed ducks. (In the last stages of feeding, ducks raised to produce foie gras are force-fed through a tube inserted into the base of their esophagus.)

In 2004, then state Senate President Pro Tem John Burton championed the bill in the State Legislature. He told KQED shortly before the measure took effect, "I don’t know why chefs can’t make something that tastes like foie gras that doesn’t mean they have to torture birds to do it.”

The law was challenged by foie gras producers based in the Canadian province of Quebec and the Hudson Valley of New York and by a Southern California restaurant chain.

A three-judge panel of the appeals court said the law doesn't discriminate against out-of-state producers since it applies equally to all producers, and doesn't interfere with interstate commerce.

The panel also rejected the plaintiffs' argument that the burden imposed by the law outweighs the benefit of furthering a state goal of preventing animal cruelty.

Judge Harry Pregerson wrote, "Plaintiffs give us no reason to doubt that the state believed that the sales ban in California may discourage the consumption of products produced by force feeding birds and prevent complicity in a practice that it deemed cruel to animals."

The court sent the case back to the trial court for further proceedings, which could include a full trial on whether to grant a permanent injunction.

The law was enacted by the legislature in 2004, but implementation was delayed until 2012 to give duck farmers a chance to develop alternative ways of producing foie gras.

While the challenged section of the law regulates sales, a second section of the law bans the act of force-feeding birds within California for the purpose of enlarging the bird's liver beyond its normal size.

That provision of the law was not challenged in the 2012 lawsuit because the plaintiffs did not raise birds within California.