Faulty Arguments, Greed, and Gluttony Put Foie Gras Back on Menu

In a court pleading written last year to challenge a California law stopping the sale and production of foie gras, attorneys for chefs and producers of fatty duck and goose liver made a Holocaust analogy, writing: "With apologies to Martin Niemoller, 'First they came for the foie gras…'"

Yesterday afternoon, after a California district court struck down the state’s first-in-the-nation ban on the sale of force-fed foie gras, they had other absurd things to say. "I've been jumping up and down for about 90 minutes," Napa Valley chef Ken Frank, who has been active in the pro-foie gras movement, told the Los Angeles Times. Providence chef Michael Cimarusti likened it to the end of Prohibition: "It feels a little like December of 1933." 

It’s nothing short of amazing to see the pent-up and dramatic hyperbole served up by people convinced of their “right” to torture animals for a table treat – for a morsel of fatty food that is the furthest thing from a staple in the American diet. I’ve seen selfishness and hedonism on display before, but this brings it all to a new level.

Nonetheless, Judge Steven Wilson, by arguing that one part of California’s foie gras ban is preempted by federal law, did strike a bitter blow against geese and ducks who are painfully force-fed so that gourmands can feast on their fatty livers. The California legislature voted in 2004 to phase out the production and sale of force-fed foie gras after animal protection groups presented legislators with evidence of the inherent cruelty of forcing metal tubes down birds’ throats to force their livers to expand up to 10 times their natural size – as a set-up to kill the ducks and extract their livers.

Yesterday’s ruling didn’t find foie gras production humane or acceptable, nor did it disturb the current ban on the production of foie gras in California. In fact, the court didn’t address the cruelty of force feeding birds at all. Instead, it found that the Poultry Products Inspection Act – a federal food safety law that has never been applied to the raising of animals for foie gras – prevents California from stopping the sale of force-fed foie gras. The court concluded that force-feeding birds is an “ingredient” of foie gras, and Congress had intended for only the federal government to regulate the ingredients in poultry products.

That’s a real reach by this judge. Not only has Congress never regulated the practice of force-feeding birds for foie gras  – or perhaps even given the subject a passing thought –  it has never regulated the on-farm treatment of farm animals at all. There are no federal laws stopping cruelty to animals on farms, and the U.S. Department of Agriculture has even interpreted the federal Humane Methods of Slaughter Act to exclude any protection for birds – including geese and ducks raised for foie gras.

And, of course, you can bet that foie gras producers won’t now be lining up for federal regulation of their abusive practices. We’ve tried before to get the federal government – through the USDA and the Food and Drug Administration – to stop the sale of force-fed foie gras, which is not only cruel but also dangerous to consumers. Each time, foie gras producers have lined up to argue that the federal government has no right to regulate them. 

This anti-regulation zealotry is also the stock-in-trade of the pork industry. When California banned the transportation and slaughter of “downer” pigs – those too sick or injured to walk – the pork industry and other meat groups took them to the U.S. Supreme Court, arguing that only the federal government could regulate the handling of animals at federally inspected slaughter plants. But, in fact, the National Pork Producers Council has for years fought federal legislation to crack down on the abuse of downer pigs. The pork industry is so against animal welfare standards that it even worked to torpedo modest animal welfare rules in the egg industry! 

So if the neither the state nor the federal government can regulate cruelty to farm animals, who can? The telling answer, for many factory farmers, is “no one” – they want no oversight whatsoever, and believe they have the right to treat farm animals however they want. They are happy to take enormous federal subsidies, however, in the form of price supports, insurance, buy-ups of surplus products, predator control, and so much more. These commercial producers milk taxpayers of billions, yet they do not want to adhere to any animal welfare standards. "Got hypocrisy?"

While our adversaries won a partial victory yesterday, they have not had the final say in court. The courts have rejected their line of argument before. Horse slaughter operators have argued that federal law prohibits states from banning the slaughter of horses for human food, and two years ago California shark fin traders argued that the state’s ban on the sale of shark fins was preempted by the federal fisheries law. Both cases went against them. That’s why we’re confident that the Ninth Circuit Court of Appeals will also reject the foie gras producers’ claim that California cannot stop the sale of force-fed foie gras when this case comes up on appeal. Just a year and a half ago, in an earlier permutation of this case, the Ninth Circuit held that California had a right to ban the sale of foie gras to “prevent [its] complicity in a practice that it deemed cruel to animals.” The Supreme Court recently refused to review that ruling.

That’s the only line of argument that holds up. Under the district court’s theory in this case, California would even lack the authority to ban the use of poultry feed that is contaminated with salmonella or E coli. And any state would lack the authority to stop the sale of meat from animals that are subject to unsanitary, environmentally destructive, or inhumane conditions long before they enter federally regulated slaughterhouses – or indeed, even meat from animals raised using child labor.

We’re now asking California Attorney General Kamala Harris, who is in charge of defending the state’s laws, to file an immediate appeal. We believe that the district court’s ruling is plainly in error. In the meantime, you can help by asking restaurants you frequent to never serve force-fed foie gras – because no gourmet pleasure is ever worth cruelty to animals.