In a major ruling with significant implications for the principle of the right of states to crack down on animal cruelty in agriculture, a unanimous panel of judges from the Ninth Circuit Court of Appeals has reinstated California’s law banning the sale of foie gras.
California had made it clear that the cruelty of foie gras is just too extreme to swallow, and the court affirmed California’s right to ban such abuse. The ruling comes just days after we launched a petition drive to qualify a ballot initiative in California to ban the sale of veal, pork, or eggs from animal production facilities that place the animals in extreme confinement.
Today’s ruling is the latest – and most important chapter – in a long-running saga that began in 2004, when California lawmakers and Gov. Arnold Schwarzenegger enacted a law to phase out the production and sale of force-fed foie gras. The HSUS and other animal protection groups (including one group that has since merged with The HSUS to become the Humane Society Veterinary Medical Association) presented legislators with evidence of the inherent cruelty in forcing metal pipes down birds’ throats to force their livers to expand up to 10 times their natural size—a process known as gavage. The birds are then killed and their livers harvested as a fatty “delicacy” — the furthest thing from a staple in most Americans’ diets. The law gave foie gras producers seven years to work out alternative ways of producing foie gras that do not involve the cruel practice.
Due to the inhumane treatment of the birds, more than a dozen countries, including Denmark, Finland, Germany, Israel, and the United Kingdom, have either prohibited force feeding for foie gras production or interpreted it as illegal under existing anti-cruelty laws. Los Angeles, San Diego, and San Francisco have passed resolutions condemning foie gras, and retailers such as Safeway, Target, and Costco refuse to sell it. More than 100 California restaurateurs dropped foie gras from their menus voluntarily before the ban went into effect.
The state of California and its allies in the fight against duck and goose cruelty gave little ground to the plaintiffs and fought hard and well to defend this anti-cruelty law. Instead of seeking alternatives to force-feeding birds, producers waited for the law to take effect and then filed suit in an attempt to strike down the ban. The HSUS, along with a coalition of animal welfare groups, filed an amicus brief in support of the California attorney general and the foie gras ban.
This is the second litigation round in this 13-year battle. In the Ninth Circuit’s first pass at considering the ban in 2013, it held firmly and contrary to foie gras producers’ complaints, that the law did not violate the commerce clause of the U.S. Constitution because California has every right to regulate activity within its state market to prevent complicity in a practice it deems cruel to animals. In the wake of that loss, foie gras producers pivoted to a different tactic, alleging on remand that the foie gras law is impermissible under a federal poultry products law. In January of 2015, in a decision that did not directly address the cruelty of force-feeding birds, a lower court held 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 banning foie gras sales because force-feeding was somehow an “ingredient” in foie gras.
The Ninth Circuit reversed that decision, unanimously and emphatically. The court held that “’force-fed’ is not a physical component that we find in poultry; it is a feeding technique that farmers use.” The court went on to note that the same logic applies to caged vs. cage-free hens. “’Cage-free’” is no more an ‘ingredient’ than ‘force-fed,’” the court stated.
Today’s decision affirms that state lawmakers and governors have a major role to play in setting standards for humane treatment, if they choose to do so. That legislating is needed precisely because Congress has consistently failed to show any interest in promoting animal welfare in agriculture. Congress has never regulated the practice of force-feeding, just as it has never regulated the on-farm treatment of animals at all. There are no federal laws stopping on-farm cruelty 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.
In that vein, California’s stand against the inhumane production practice of foie gras and the sales of such products within its borders is all the more important. The Ninth Circuit’s ruling is not only a rejection of the cruelty associated with foie gras production, it is also an affirmation of states’ rights. The federal government doesn’t have primacy on animal cruelty issues it fails to confront.