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Cal. Foie Gras Ban Upheld as Constitutional

By Aditi Mukherji, JD on September 04, 2013 | Last updated on March 21, 2019

The Ninth Circuit Court of Appeals has upheld California's ban on the sale of foie gras, a product that is made by force-feeding birds.

For those who lack a fine (and cruel) palate for the delicacy, foie gras is a dish made from the fatty liver of a goose or duck. To enlarge their livers, birds are force-fed.

But on what grounds are producers challenging the foie gras ban?

California's Foie Gras Ban

To produce their foie gras, producers (who were plaintiffs in this case) fed their ducks through a tube inserted directly in the ducks' esophagi. It would cause the birds' livers to balloon to 10 times their normal size.

In July 2012, California Health & Safety Code § 25982 came into effect, which barred the sale of foie gras on the basis of animal cruelty.

More specifically, the statute bars the sale of products that are made from force-feeding birds to enlarge their livers beyond normal size.

Due Process

In their chief due process argument, the plaintiffs -- who are producers of the delicacy -- claimed that the statute's definition of "force feeding" was vague.

Under the void-for-vagueness doctrine, a law is a violation of due process if an ordinary person can't understand what conduct is prohibited.

In this case, the producers argued that the law wasn't clear how much food was too much.

But the court said it was clear that the statute aimed to prohibit using a tube to feed a bird more than it would consume voluntarily.

Commerce Clause

Under the Dormant Commerce Clause, state laws can't improperly burden or discriminate against interstate commerce.

Here, the producers argued the California ban unfairly discriminates against their interstate foie gras industry and directly regulates interstate commerce.

But the court rejected the plaintiffs' Commerce Clause arguments by pointing out that the ban applies to all companies, regardless of where the fatty livers came from -- so it doesn't give a leg up to any particular state.

All in all, the challengers had a weak case and were grasping at tubes straws to cobble together their legal arguments. They've vowed to continue the fight, but without a new legal argument they'll likely lose -- and drown their sorrows in Pinot Grigio and cry themselves to sleep on their 2000 thread-count sheets.

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