9th Circuit Affirms Force-Feeding Foie Gras Ban in California

PASADENA, Calif.A panel of appeals court judges has affirmed California's right to prohibit the sale of foie gras which is produced through a method critics deem cruel.

Producers of foie grass, a delicacy that is made from fattened duck liver, challenged a California statute that bans the sale of a product "if it is the result of force feeding a bird for purpose of enlarging the bird's liver beyond normal size."

A federal district court denied a request by a California restaurant (Hot's Restaurant Group, Inc. or Hot's Kitchen) and other litigants to preliminarily enjoin California from enforcing a ban that took effect July 1, 2012.

Three judges with the U.S. Court of Appeals for the 9th Circuit affirmed that decision, rejecting arguments that the statute (California Health & Safety Code § 25982) violates due process or unconstitutionally discriminates against and directly regulates interstate commerce.

Writing for the panel, Circuit Judge Harry Pregerson  also declared the prohibition does not impose an outright ban on the sale of foie gras. "It bans the sale of foie grass produced through force feeding," he wrote in the opinion, "but would not ban foie gras produced through alternative methods."

The 9th Circuit also interpreted § 25982 as not barring "the sale of duck breasts, down jackets, or other non-liver products from force-fed birds."

The decision marked a defeat for entities outside California who produce and sell foie grass, including the appellants Association des Éleveurs de Canards et dOies due Québec and HVFG LLC.

The lawsuit challenging the ban was filed against Calif. Gov. Edmond Brown, the State of California and Kamala Harris, the state attorney general. But the 9th Circuit found Brown and the state he leads were immune from the suit while Harris could still be sued.

Raymond Fisher, a circuit judge with the 9th Circuit, and Wiley Daniel, a senior federal judge from Colorado, joined Pregerson in the decision. Michael Tenenbaum, an attorney for the foie gras producers, told Reuters the producers could appeal the panel's ruling to the full 9th Circuit Court or to the U.S. Supreme Court.