WASHINGTON − Sometimes the same issue crops up again and again on the Supreme Court’s docket − Obamacare, for instance, or immunity for police officers accused of excessive force.
And sometimes the issue is foie gras.
More than a decade after California banned the sale of the French delicacy because it is made by force-feeding birds, a group of farmers in New York and Canada are once again asking the Supreme Court to overturn the prohibition. The court ducked earlier iterations of the lawsuit, declining to hear the case in 2014 and 2019.
“This case happens to involve foie gras, perhaps the most maligned and misunderstood food in the world,” the farmers argued in their brief to the high court.
Summary: A food fight returns to the Supreme Court
- Background: The debate over foie gras − the fatty liver of force-fed ducks and geese − has been fought on political and legal fronts for decades. Animal rights groups say the process of making foie gras is cruel. Farmers say they comply with regulations and that they “care about their animals just as much as any California politician or animal-rights activist.”
- Latest: The farmers claim California’s ban runs afoul of a federal law enacted in 1957 that sets out rules for poultry production. They argue the law preempts, or supersedes, the state ban. The Supreme Court was set to discuss Thursday whether to hear arguments and it could announce its decision on that question as soon as Monday.
- France is appalled! As it has in past iterations of the case, the Republic of France submitted a brief describing California’s ban as an “assault on French culture.” Not mentioned in the brief, however, is the fact that some French cities have banned foie gras from official events for the same reason.
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Foie gras bans have struggled in other parts of the country. Chicago banned its sale in 2006, only to repeal the provision two years later. New York City approved a ban in 2019, though it has been caught up in courts ever since and is not currently in effect. Animal welfare advocates say other jurisdictions are likely paying attention to what happens with the court cases in New York and California.
“I absolutely think that allowing a ban to stand in California or any other state … makes it easier for other jurisdictions to enact similar bans,” Edita Birnkrant, executive director of the animal rights group NYCLASS said in a statement. “The world watches what happens in NY.”
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California, which enacted its law in 2004, was the first state to ban foie gras. The ban raised questions about whether one state may prohibit sales of a product produced in another state without implicating interstate commerce. Could a state ban the sale of filet mignon, for instance, made from cows that are raised on a certain kind of feed?
The Supreme Court delved into that issue earlier this month, siding with − again − California on a ban of pork products in that state unless the butchered pig was born to a sow housed in at least 24 square feet of floor space. In that case, the pork industry claimed the California ban would have a huge impact beyond its borders, affecting farmers in Iowa, Minnesota and elsewhere. A 5-4 majority on May 11 allowed the California ban to stand.
Waddle into the weeds: What the foie gras case is about
Animal rights groups said they are confident the Supreme Court will decline to hear the foie gras appeal.
At least one of the poultry farmers’ questions − whether the California ban violates a legal principle encouraging interstate commerce − appears to have been answered in the pork case this month. But the farmers are raising a separate issue as well: Whether a federal law first approved in 1957 that regulates poultry slaughter and processing bars states like California from approving such bans.
“Like it or not, foie gras is just another poultry product that, as approved by USDA, is certified for sale throughout the United States,” the farmers told the Supreme Court.
But opponents say the pro-foie faction is reading too much into what that law does. The law defines what foie gras is and how it’s made, said Ralph Henry, senior director of litigation for the Humane Society of the United States. It doesn’t require a state to permit its sale.
“It doesn’t say that you have to force feed the ducks. And it doesn’t say that foie gras has to be brought to market,” Henry said. “Nothing about that requires its marketability in California or Idaho or anywhere else.”