California foie gras law

California foie gras law
California State Legislation
 
Full name Force Fed Birds
Status Passed
Introduced February 19, 2004
Assembly voted August 24, 2004
Senate voted May 18, 2004
Signed into law September 29, 2004
Sponsor(s) John Burton
Governor Arnold Schwarzenegger
Code Health and Safety Code
Section 25980–25984
Website SB-1520 Force fed birds.(2003-2004)

The California foie gras law, California S.B. 1520,[1] is a California State statute that prohibits the "force feed[ing of] a bird for the purpose of enlarging the bird's liver beyond normal size" (California Health and Safety Code § 25981) as well as the sale of products that are a result of this process (§ 25982).[2] This outlawed the traditional method of producing foie gras in California. The law was enacted in 2004 and went into effect on July 1, 2012.[3][4] On January 7, 2015, U.S. District Judge Stephen V. Wilson held that the portion of California's law banning the sale of foie gras within the state (California Health and Safety Code § 25982) was preempted by the federal Poultry Products Inspection Act, and enjoined the California Attorney General from enforcing it.[5][6] That decision is currently on appeal.

Background

S.B. 1520 was introduced in the California State Legislature on February 19, 2004[7] by then-Senate President Pro-Tem John Burton at the request of a coalition of animal protection organizations that included Viva!USA, Farm Sanctuary, Los Angeles Lawyers for Animals, and the Association of Veterinarians for Animal Rights.[8]

Burton stated, "We just shouldn't be cramming a tube down a duck's throat and forcing in food to make foie gras," and that foie gras production is "an inhumane process that other countries have sensibly banned. I'm pleased California will be next on the list."[9]

The legislature passed the bill and it was signed into law by Governor Arnold Schwarzenegger on September 29, 2004.[7]

The law included a provision that it would take effect almost eight years after enactment, in order to allow time for techniques to be developed by which foie gras could be produced without force-feeding birds.[10] As of the date the law took effect, no such technique had been developed that was deemed commercially viable.

During the months leading up to the date when the law would go into effect, some California restaurants hosted elaborate multi-course meals featuring foie gras in many forms, drawing patrons who wanted to eat foie gras before the ban went into effect.[11]

A farmer in Spain is producing a version of goose foie gras, which he says is made without force-feeding the geese.[12][13][14][15]

Lawsuits seeking to overturn law

Association des Eleveurs de Canards et D’Oies du Quebec, et al v. Harris, et al.
Court United States Court of Appeals for the Ninth Circuit
Full case name Association des Eleveurs de Canards et D’Oies du Quebec, HVFG LLC; Hots Restaurant Group Inc., and Gauge Outfitters Inc. v. Kamala Harris, Attorney General; and Edmund G. Brown, Governor
Decided August 30, 2013 (2013-08-30)
Citation(s) Association des Eleveurs de Canards et D’Oies du Quebec, et al v. Harris, et al., no. 12-56644 (9th Cir. Aug. 30, 2013)
Case history
Prior action(s) U.S. District Court Judge Stephen V. Wilson denied a motion for preliminary injunction restraining Attorney General Harris from enforcing the California ban on foie gras
Case opinions
In a unanimous opinion authored by Judge Pregerson, the court held that the Attorney General was not subject to Eleventh Amendment immunity from suit; that the Governor and state of California were entitled to Eleventh Amendment immunity and were dismissed from the suit; and that the district court did not abuse its discretion in finding that there was no serious question of a Due Process violation or a violation of the Commerce Clause, and affirmed the denial of the motion.
Court membership
Judge(s) sitting Harry Pregerson, Raymond C. Fisher, and Wiley Y. Daniel (sitting by designation)

A lawsuit[16] was filed in U.S. District Court in Los Angeles on July 2, 2012, seeking to overturn the California foie gras law on the ground that it is unconstitutionally vague.[17] The plaintiffs are two foie gras producers and a southern California restaurant group[18] that served foie gras until the ban took effect.[19] On July 18, 2012, U.S. District Court Judge Stephen V. Wilson denied the plaintiffs' request for a temporary injunction that would have immediately suspended the foie gras ban.[20] On September 19, 2012, Judge Wilson denied the plaintiffs' request for a preliminary injunction against enforcement of the law.[21]

Five animal welfare organizations (the "Proposed Defendant Intervenors") (Farm Sanctuary, Animal Legal Defense Fund, the Marin Humane Society, the Humane Society of the United States, and the Humane Society Veterinary Medical Association) who are sponsors of the challenged law had petitioned to be accepted as defendant intervenors in the case. Judge Wilson denied their petition. On September 7, 2012, the Proposed Defendant Intervenors (the appellants) filed an appeal with the Court of Appeals for the Ninth Circuit.[22] The appellants are appealing Judge Wilson's ruling that excluded them from the case.

Oral arguments on the District Court's denial of the plaintiff's preliminary injunction were heard on May 8, 2013 before the U.S. Court of Appeals for the Ninth Circuit in Pasadena.[23] In August 2013, the court, in a 3-0 decision, upheld the denial of the preliminary injunction, finding that the law likely violated neither the Due Process Clause nor the Commerce Clause of the U.S. Constitution as asserted by the plaintiffs.[24][25] In January 2014, the Ninth Circuit Court of Appeals denied a request by foie gras proponents to reconsider their challenge to the law.[26]

On January 7, 2015, U.S. District Judge Stephen V. Wilson held on remand that the portion of California's law banning the sale of foie gras within the state (California Health and Safety Code § 25982) was preempted by the federal Poultry Products Inspection Act (PPIA), and enjoined the California Attorney General from enforcing it.[27][28] The case is again on appeal to the Ninth Circuit.[29][30] Briefs have been filed in the appeal.[31] California's Attorney General, Kamala Harris, is arguing that the PPIA regulates the ingredients of poultry products, but that the manner in which the birds are fed while alive does not constitute an ingredient and so therefore California's foie gras law is not preempted by the PPIA. The court is considering scheduling oral arguments for November or December 2016.[32]

Resistance to the law

After the law went into effect, a number of restaurants reportedly continued to serve foie gras, insisting that they are doing so as a gift to customers rather than selling it to customers.[33][34]

See also

Notes

  1. ↑ California Senate Bill no. 1520, Force fed birds, approved September 9, 2004, codified at California Health and Safety Code §§ 25980–25984.
  2. ↑ California Health and Safety Code § 25982.
  3. ↑ Brown, Patricia Leigh (2004-10-06). "Is Luxury Cruel? The Foie Gras Divide". The New York Times. Archived from the original on 2012-10-04. Retrieved 2012-07-02. THE signing of a bill by Gov. Arnold Schwarzenegger last week banning the production and sale of foie gras in California
  4. ↑ Moore, Martha T. (2006-06-05). "Foes see foie gras as a fat target". USA Today. Archived from the original on 2012-07-02. Retrieved 2012-07-02. It is already coming off the menu in California, which in 2004 set a 2012 deadline to end production and sale.
  5. ↑ Association des Eleveurs de Canards et d'Oies du Quebec v. Harris, No. 12-5735, (C.D. Cal. filed July 2, 2012), Order Denying Defendant's Motion to Dismiss and Granting Plaintiff's Motion for Partial Summary Judgment as to Preemption Claim and Partial Judgment as to Preemption Claim (Jan. 7. 2015).
  6. ↑ Parsons, Russ (January 7, 2015). "Foie gras can go back on California menus, judge rules". Daily Dish. Los Angeles Times. Retrieved January 7, 2015.
  7. 1 2 "SB 1520 Complete Bill History". California State Senate. 2004-09-29. Retrieved 2010-06-30.
  8. ↑ Barnato, Teri (2004-02-23). "California Bill Would Ban Force Feeding of Ducks and Sales of Foie Gras; Animal Protectionists Say Practice is Cruel". Viva! USA. Archived from the original on 2012-07-02. Retrieved 2012-07-02.
  9. ↑ Macias, Chris (2012-06-25). "As California ban on foie gras looms, some press for repeal". The Sacramento Bee. The McClatchy Company. ISSN 0890-5738. Archived from the original on 2012-07-02. Retrieved 2012-07-02. We just shouldn't be cramming a tube down a duck's throat and forcing in food to make foie gras
  10. ↑ Vekshin, Alison (2012-06-26). "California Foie Gras Fans Seek to Beat Curb as Ban Begins". Bloomberg Businessweek. ISSN 0007-7135. Archived from the original on 2012-07-05. Retrieved 2012-07-04. The California law had postponed enforcement of the ban for almost eight years to allow producers to find an alternative to force-feeding.
  11. ↑ "Foie Battle Kickoff Dinner! (Downtown SJ)". Cupertino, California: Dishcrawl. March 2012. Archived from the original on 2012-11-06. Retrieved 2012-11-06. Chefs from San Jose, Peninsula and San Francisco will be hosting foie gras dinners in undisclosed locations.
  12. ↑ Heald, Claire; Mitchell, Diarmuid (2007-01-26). "The Holy Grail of foie gras?". BBC News Magazine. BBC News. Retrieved 2014-01-14. Culinary purists however say that without the force feeding, it is not foie gras.
  13. ↑ Abend, Lisa (2009-08-12). "Can Ethical Foie Gras Happen in America?". Time. Retrieved 2014-01-14. (subscription required (help)).
  14. ↑ Barber, Dan (November 2008). "Dan Barber: A foie gras parable" (video of a talk). TED. Retrieved 2014-01-14. I love [foie gras].
  15. ↑ Glass, Ira (2011-12-02). "Poultry Slam 2011 (Act Three)" (radio program). This American Life. Retrieved 2014-01-14. How big is [a non-gavage goose's fattened liver]? Well, like it's a small football. A transcript of this program is online here
  16. ↑ Association des Eleveurs de Canards et d'Oies du Quebec v. Harris, No. 12-5735, (C.D. Cal. filed July 2, 2012).
  17. ↑ Finz, Stacy; Lucchesi, Paolo (2012-07-03). "Foie gras ban triggers California lawsuit". San Francisco Chronicle. Archived from the original on 2012-08-24. Retrieved 2012-08-24.
  18. ↑ Hsu, Tiffany (2012-07-18). "Judge denies effort to stop California foie gras ban". Los Angeles Times. Archived from the original on 2012-08-24. Retrieved 2012-08-24.
  19. ↑ Pettersson, Edvard (2012-07-18). "California Foie Gras Ban to Remain in Force, Judge Says". Bloomberg L.P. Archived from the original on 2012-08-24. Retrieved 2012-08-24.
  20. ↑ Justia.com Dockets & Filings page
  21. ↑ Lifsher, Marc (2012-09-19). "Judge denies block of California's foie gras ban". Los Angeles Times. Archived from the original on 2012-09-24. Retrieved 2012-09-24. U.S. District Court Judge Stephen Wilson denied a request for an injunction while the lawsuit continues.
  22. ↑ Association des Eleveurs de Canards et D’Oies du Quebec, et al v. Kamala Harris, et al., no. 12-56644 (9th Cir. filed Sept. 7, 2012)(docket)
  23. ↑ Reynolds, Matt (2013-05-09). "9th Circuit Urged to Suspend Foie Gras Ban". Courthouse News Service. Archived from the original on 2013-05-09. Retrieved 2013-05-09. Judge Fisher was skeptical, saying the law had only indirect effects on the market for foie gras outside California.
  24. ↑ Elias, Paul (September 3, 2013). "Court upholds California ban on foie gras". San Jose Mercury News. Associated Press. Retrieved September 6, 2013.
  25. ↑ Association des Eleveurs de Canards et D’Oies du Quebec, et al v. Harris, et al., no. 12-56644 (9th Cir. Aug. 30, 2012)
  26. ↑ "Court of Appeals Rejects Bid to Reconsider California's Foie Gras Ban". The Humane Society of the United States. 2014-01-27. Retrieved 2014-01-31. The Ninth Circuit Court of Appeals has denied a request by a handful of foie gras proponents to reconsider their challenge to the law.
  27. ↑ Association des Eleveurs de Canards et d'Oies du Quebec v. Harris, No. 12-5735, (C.D. Cal. filed July 2, 2012), Order Denying Defendant's Motion to Dismiss and Granting Plaintiff's Motion for Partial Summary Judgment as to Preemption Claim and Partial Judgment as to Preemption Claim (Jan. 7. 2015).
  28. ↑ Parsons, Russ (January 7, 2015). "Foie gras can go back on California menus, judge rules". Daily Dish. Los Angeles Times. Retrieved January 7, 2015.
  29. ↑ Pierson, David (February 4, 2015). "California attorney general to appeal reversal of foie gras ban". Los Angeles Times. Retrieved March 16, 2015.
  30. ↑ Assoc. des Eleveursde Canards, et al v. Kamala Harris, no. 15-55192, 9th Cir., docket report, retrieved from PACER, March 16, 2015.
  31. ↑ "Foie gras' fate in hands of 9th Circuit Court of Appeals". Los Angeles Daily News. City News Service. 2015-11-04. Retrieved 2016-08-13.
  32. ↑ Assoc. des Eleveursde Canards, et al v. Kamala Harris, no. 15-55192, 9th Cir., docket report, retrieved from PACER, August 13, 2016.
  33. ↑ Veronin, Nick (2012-07-19). "Fighting the law with free foie gras: Chez TJ chef believes loophole in new legislation puts restaurant in clear". Mountain View Voice. Embarcadero Media. Retrieved 2013-05-21. The Cupertino-born chef reasons that as long as he is giving the traditional French delicacy away, 'for free,' the restaurant is in the clear.
  34. ↑ Noyes, Dan (2013-05-06). "Bay Area restaurants still selling banned foie gras". ABC7 News. San Francisco. Retrieved 2013-05-21. The ABC7 News I-Team has learned that restaurants around the Bay Area are quietly serving a food that's banned in California -- foie gras, the fatty liver of a duck that's been force fed.
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