At the heart of this legal debate is the question of what exactly is getting banned.

Mike Pomranz
September 18, 2017

Is any food as synonymous with controversy as foie gras? Horse meat will get people up in arms. And putting an end to factory farming in general has been an extremely popular cause as of late. But foie gras—and the unnatural way in which a bird must be force fed to achieve this delicacy—seems to conjure up a more heated debate. For years, California has attempted to be the first and only state in the US to ban foie gras, but despite a law passed in 2004 and enacted in 2012, the battle has continued to play out in court. The most recent ruling: The ban is back on. But don’t be surprised if things change again.

ROBIN VAN LONKHUIJSEN / Getty Images

Signed into law by Governor Arnold Schwarzenegger on September 29, 2004, Senate Bill No. 1520 states, “A person may not force feed a bird for the purpose of enlarging the bird’s liver beyond normal size, or hire another person to do so,” and a “product may not be sold in California if it is the result of force feeding a bird for the purpose of enlarging the bird’s liver beyond normal size.” The statute was given nearly eight years before becoming operative, with a start date of July 1, 2012.

But literally the day after the new rule took effect, a group filed a lawsuit aiming to strike it down. After years of legal wrangling by both sides, in 2015, the pro-foie gras plaintiffs got the decision they were looking for: After over two years of foie gras being forced off menus, a judge axed the ban, saying that the state law was preempted by the federal Poultry Products Inspection Act. But on Friday, another twist: The 9th U.S. Circuit Court of Appeals struck down that ruling, saying no conflict exists between California’s law and federal regulations, meaning that the ban is back on.

At the heart of this legal debate is the question of what exactly is getting banned. Obviously, foie gras is the product California wants off the market, but is it an “ingredient” or a “process.” If foie gras is an “ingredient” as was ruled in 2015, then it falls under the jurisdiction of the USDA, a federal organization which trumps state laws. However, if it is a “process,” as has been ruled more recently, then the state can regulate it. “It is not the livers that are force-fed, it is the birds,” Judge Jacqueline Nguyen wrote in the most recent decision according to The Sacramento Bee. “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.”

Unsurprisingly, a lawyer for the plaintiffs said the battle is not over. “The ruling is disappointing, the reasoning is flawed,” attorney Michael Tenenbaum was quoted as saying. But for now, the bird ban appears to be coming back.

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