Chefs Begin Serving Foie Gras After California Ban is Struck Down

Even as animal rights groups said they hoped for a successful appeal of a ruling striking down California’s ban on foie gras, several Bay Area chefs said they plan to resume serving the food as soon as tonight.

“Foie Gras is going back on the menu tonight. I am delighted and happy for California to finally end this nightmare,” said Ken Frank, the chef and proprietor of La Toque in Napa.

“I think it’s great. I felt all along that customers should be able to decide on what they want to eat,” said chef Mark Dommen of One Market in San Francisco. He said he hoped to be serving foie gras by Friday.

Foie gras, which means “fat liver” in French, is made from the livers of force-fed ducks or geese. In the last stages of feeding, birds raised to produce foie gras are force-fed through a tube in order to enlarge their livers.

Foie gras was banned in California in a two-part law enacted by the state legislature in 2004. The implementation of the measure was delayed until 2012 to give duck farmers a chance to develop alternate ways of producing the food.

One part of the law banned the sale of products resulting from the force-feeding of a bird for the purpose of enlarging its liver.

That provision was struck down today by U.S. District Judge Stephen Wilson, who said it was preempted by a federal law that regulates the sale of poultry products.

Wilson ruled in a lawsuit filed in 2012 by foie gras producers from the Canadian province of Quebec and the Hudson Valley of New York and a Southern California restaurant chain.

The federal law, known as the Poultry Product Inspection Act, specifically prohibits states from imposing ingredient requirements that are additional to or different from federal requirements, Wilson noted in a 15-page decision.

Wilson wrote that force-fed bird’s liver is “a particular constituent” or ingredient of foie gras and said the state law is therefore preempted by the U.S. statute because it imposes an ingredient requirement.

A second part of the law bans the force-feeding of birds within California for the purpose of enlarging their livers. That provision was not challenged and remains intact, but Wilson’s decision clears the way for California restaurants to obtain foie gras from out-of-state producers.

California Attorney General Kamala Harris, whose office defended the law, had no immediate comment on whether she will appeal to the 9th U.S. Circuit Court of Appeals in San Francisco.

“We are reviewing the ruling,” said Harris spokesman David Beltran, who also declined to comment on whether Harris might seek a stay during an appeal.

Without a stay, restaurants are free to begin serving foie gras immediately.

The Humane Society of the United States, which was allowed to intervene and become a party in the case, said it is urging Harris to appeal.

“The state clearly has the right to ban the sale of the products of animal cruelty, and we expect the 9th Circuit will uphold this law, as it did in the previous round of litigation,” Humane Society President Wayne Pacelle said in a statement.

“Force-feeding is not an ‘ingredient’ of foie gras since foie gras can be produced without resorting to such cruel methods,” Pacelle said.

Kelsey Eberly, a lawyer with the Cotati-based Animal Legal Defense Fund, said, “We’re very confident the appeals court will end up upholding the law.”

The group joined other organizations in filing friend-of-the-court briefs supporting the law.

People for Ethical Treatment of Animals President Ingrid Newkirk said in a statement, “Foie gras is French for ‘fatty liver,’ and ‘fathead’ is the American word for the shameless chefs who actually need a law to make them stop serving the swollen, near-bursting organ of a cruelly force-fed bird.

“PETA believes that this decision will be reversed on appeal,” Newkirk said.

A spokeswoman for Victor Scagle, chef of Lucy Bar & Restaurant in Yountville, said he is adding foie gras to the menu.

Chef Joe Cirone of Hay Market in San Jose said he hopes to be serving foie gras within a few days.

Dirty Habit of San Franciso announced on its website that chef David Bazirgan was offering a four-course foie gras menu tonight.

The lawsuit challenging the law originally did not include a claim based on the federal Poultry Product Inspection Act.

In earlier proceedings, Wilson and the 9th Circuit rejected the foie gras producers’ argument that the state law unconstitutionally interfered with interstate commerce, and U.S. Supreme Court declined to review the case.

Last year, the producers filed an amended version of the lawsuit adding the successful PPIA claim.

Julia Cheever, Bay City News

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