Overturned Foie Gras Ban Could Affect the Welfare of 301 Million Hens

A U.S. District Court in California overturned the two-year ban on foie gras, and the decision may set a precedent for similar legislation.

(Photo: Flickr)

Jan 9, 2015· 2 MIN READ
Josh Scherer has written for Epicurious, Thrillist, and Los Angeles magazine. He is constantly covered in corn chip crumbs.

On July 1, 2012, animal rights activists rejoiced after California officially banned the sale of foie gras, the fattened liver of ducks or geese produced by force-feeding them, which many consider a cruel practice.

On Jan. 7, 2015, foodies wealthy enough to afford the $65-per-pound luxury item had a similar reaction when the law was overturned. One chef even tweeted a selfie showing him holding two of the swollen, fatty livers next to his smiling face. Little do the celebrating chefs know that the return of foie gras to their menus could also affect the sunny-side-up farm eggs that crown half their brunch items.

The ruling could spell trouble for Proposition 2, the California ballot initiative passed in 2008 that drastically improves the living conditions for laying hens. The regulation, which went into effect on Jan. 1, is facing lawsuits from egg producers in Iowa, Missouri, Alabama, Nebraska, Oklahoma, and Kentucky. The plantiffs argue that California is illegally regulating their businesses—and now the foie gras case could set a precedent for overturning such laws.

Though the ethics behind artificially fattened waterfowl liver have been debated ad nauseam, the sheer volume of consumption is quite low, thanks to foie gras’ ridiculous price tag. That’s reflected on the farm, where relatively few ducks and geese are raised to meet the luxury-market demand. As Ari Taymor, chef at L.A.’s Alma, said to Grub Street, “I feel like there are bigger problems to deal with in terms of animal cruelty, and this was a really ridiculous, hypocritical rule that did nothing for anybody.”

But if the poultry companies find success using a similar approach with the plaintiffs in the foie gras case, the new standards—which could improve living conditions for 301 million laying hens—may be rolled back.

According to Michael T. Roberts, executive director of UCLA’s Resnick Program for Food Law and Policy, cases that pit state laws against federal regulations are always messy. “These preemption issues are complicated, and it’s a bit of a moving target,” he said.

That uncertainty has some worried about the fate of Prop. 2. “Is this the end of the egg law too? Maybe. It’s too soon to say,” Baylen Linnekin, executive director of the Keep Food Legal Foundation, told Voice of San Diego. “But if a court in lefty Los Angeles is using the rationale that the law was unconstitutional to overturn the foie gras ban—then I think a court in Fresno, where the egg case is being heard, might decide to do the same thing.”

Although the foie gras issue was framed as a simple question of cruelty versus compassion, Judge Stephen Wilson’s decision to overturn the ban had nothing to do with ethics. Instead, the ruling had everything to do with a federal regulation passed 58 years ago. According to the ruling from the U.S. District Court for California’s Central District, the law banning foie gras sale in the state was unconstitutional because it unlawfully interfered with the Poultry Products Inspection Act of 1957.

Roberts further detailed the legal nuances of the final judgment. “The ban was really narrowly written. It dealt with the ingredient, which brought it into direct conflict with ingredient labeling requirements of the Poultry Products Inspection Act. So it didn’t have anything to do with the activities but the ingredient itself, which is foie gras.”

In other words, the foie gras ban outlawed foie gras for being foie gras—not for being fattened duck liver raised in a way that’s legally considered inhumane.

“If the law had been written in a way that would prohibit force-feeding altogether, then the outcome may have been different,” Roberts said.

So could out-of-state egg producers make the claim that California’s regulation, Prop. 2, is not applicable because it is preempted by a federal regulation, the Egg Production Inspection Act? Roberts doesn’t think that will happen anytime soon. “Prop. 2 is distinguishable from the foie gras case because they made the focus broader, which is what the court says did not happen in the foie case,” he said.

Unlike the foie gras ban, “Prop. 2 is not focused on the ingredient,” he added, noting that “the EPIA really applies to grading standards for eggs, and Prop. 2 really covers the treatment of the animal.”

But if the narrow ruling doesn’t provide a precedent for overturning Prop. 2, its impact on the narrow ruling in the foie gras case will still be felt in cases that pit state agriculture regulations against federal laws.

“This tension between federal and state law is going to continue to emerge in the food world,” Roberts said, and whether it’s eggs or ag-gag or antibiotic-use regulations, understanding the foie gras ruling will be “a hallmark of legislation that’s going to pass litigation challenges.”