Following a brief, two-and-a-half-year period in which it was illegal to produce or sell foie gras in California, following the implementation of a law that dated back to 2004 in the California banning the stuff on the basis of animal cruelty, Californian foodies and restaurants have been free to buy and serve the stuff since a 2015 federal court decision that struck down the ban. Now, following an appeal shortly thereafter by then state Attorney General Kamala Harris, a three-judge panel at the Ninth Circuit has ruled that the ban can take place again but the plaintiffs in the case are already appealing to the Ninth Circuit once more, as the Chronicle reports. This means that you can still consume the ultra-rich liver luxury item for the time being, but its days on California menus may once again be numbered.
The issue, since the get-go, when then state senator John Burton introduced the law over a decade ago, is the allegation borne out on many animal rights activists' videos that ducks and geese used to produce the fatty delicacy are force-fed and therefore tortured in order to produce the product, which has been popular for centuries in French and prized by many star chefs.
Opponents of the law, which include many Bay Area chefs led in part by Napa chef Ken Frank of La Toque, have contended that not only do the birds over-eat on their own when in the wild and preparing to migrate (something that only one foie gras farmer has been able to replicate in Spain, because the birds are so easily domesticated), but that the birds esophaguses are much more pliable than those of humans, and the tube-feeding that occurs to produce foie gras on a farm is not cruel.
As Reuters reports, the appeals court judges ruled last week that, contrary to the earlier federal court decision, "Nothing in the federal law or its implementing regulations limits a state’s ability to regulate the types of poultry that may be sold for human consumption."
The original decision had been based on the federal Poultry Products Inspections Act, which prohibits states from imposing certain conditions on food, but writing for the majority last week, Ninth Circuit Judge Jacqueline Nguyen wrote that the California law "did not impose a preempted ingredient requirement," and "The difference between foie gras produced with force-fed birds and foie gras produced with non-force-fed birds is not one of ingredient. Rather, the difference is in the treatment of the birds while alive."
PETA has been celebrating the decision, of course, with PETA president Ingrid Newkirk issuing a statement saying that "no one but the most callous chefs could stomach and revealing that foie gras is torture on toast and unimaginably cruel."
After the law finally took effect in 2012, long after it had initially passed, it was met with some unhappiness among foodies, and a sort of foie "underground" among California chefs, many of whom continued to buy the stuff from New York State producer Hudson Valley Foie Gras who is one of the plaintiffs in the current case, along with Southern California’s Hot’s Restaurant Group and Canadian nonprofit Association Des Éleveurs de Canards et D’Oies du Quebec. The law effectively shut down California's only foie producer, Sonoma-Artisan Foie Gras, and it led to chefs hiding surprise foie gras courses in their tasting menus as "gifts," thereby skirting the law about selling it.
Interestingly, there's been a growing movement in France to institute a ban on foie gras but there, just as here, it's not like everyone across the board really craves or requires this delicacy.
Frank tells the Chronicle not to worry: "I have no doubt it will eventually fail. This law was flawed when John Burton cooked it up, in a number of ways. It’ll take a lot of money and lawyering, but it will fail."
