Out-of-state foie gras can be shipped into California, but it still can’t be resold in the state, even by restaurants.
Advertisement

Despite lawmakers’ best efforts, California can’t seem to keep foie gras out of the state. In a somewhat unexpected twist—seeing as even the U.S. Supreme Court opted out of reviewing the ban—foie gras proponents have once again carved out a slim victory, this time by convincing a judge to permit an exception specifically for fatty goose and duck livers shipped in by third parties from out of state.

To recap, California passed its foie gras ban all the way back in 2004. It officially took effect on July 1, 2012, and faced its first legal challenge on July 2. Since then, the ban has been more on-again, off-again than a soap opera romance. I've personally written about how foie gras was back on menus in 2015 and off them again in 2017. When the Supreme Court refused to weigh in on January 8, 2019, the ban seemed set to stick—and, indeed, foie gras hasn’t been legally allowed to be sold in California for the past year and a half. But all along, even as defeats continued to mount, out-of-state producers promised the fight was not over. They weren’t kidding.

Christmas snack of duck liver pate with truffles. Mixed salad leaves and orange slices
Credit: Diana Miller/Getty Images

Yesterday, U.S. District Judge Stephen V. Wilson—the same judge who ruled in favor those looking to overturn the law back in 2015 (before having his ruling reversed by an appeals court in 2017)—once again offered a very specific judgment in favor of the plaintiffs. Wilson wrote that selling foie gras in California did not defy the state’s ban so long as the sale met five criteria: “The Seller is located outside of California. The foie gras being purchased is not present within California at the time of sale. The transaction is processed outside of California (via phone, fax, email, website, or otherwise). Payment is received and processed outside of California, and The foie gras is given to the purchaser or a third-party delivery service outside of California, and ‘[t]he shipping company [or purchaser] thereafter transports the product to the recipient designated by the purchaser,’ even if the recipient is in California.”

Though not a perfect analogy, the decision is somewhat similar to a dry county where alcohol sales are forbidden, but you can still purchase booze elsewhere and bring it across county lines for personal consumption.

“Whether the purchaser receives the foie gras in California is not closely related to whether the force-feeding or sale occurred in California, which [is what the law is] intended to ban,” the ruling states. After outlining the criteria, Wilson then adds, “This judgment is limited to the circumstances described above, and does not encompass situations wherein the Seller is present in California during the sale, or the foie gras is already present in California when the sale is made.”

“We are gratified that the Court recognized that California’s misguided ban was never intended to apply to foie gras products from out‐of‐state producers that are shipped to happy consumers in California,” Marcus Henley, vice president for Hudson Valley Foie Gras, one of the plaintiffs, stated after the decision.

It’s easy to see why Henley’s happy: According to the Catskill Foie Gras Collective, producers they represent in New York and Canada have seen their total sales plummet by a third since 2012. And last year, New York City approved its own foie gras ban, set to take effect in 2022—another major blow on the horizon.

But back to California, importantly, this new ruling does not appear to pave the way for foie gras to be served in restaurants. In fact, the decision explicitly states, “Of course, once the foie gras reaches California, it cannot be resold within the state, even if the transaction processes ‘out of state’ via an explicit agreement or otherwise.” A footnote then further specifies, “No relief is offered, for instance, ‘to sellers of Hudson Valley’s and Palmex’s foie gras products who are located within California (e.g., restaurants) [who] have been forced to stop selling them to purchasers in California.’”

And yet, anecdotal evidence suggests that some restaurants have already been working around California’s ban by adding foie gras items to meals as free “gifts.” Whether this new ruling—which makes procuring foie gras legal—might embolden more restaurants to join that practice is yet to be seen.

Meanwhile, the Associated Press reported that the California attorney general's office is reviewing the court’s decision.