Animal rights groups can sue Napa restaurant over foie gras

FILE - In this Dec. 9, 2003 file photo, Jorge Vargas uses a funneled pipe to force-feed a measured dose of corn mush to a Moulard duck in its pen at Sonoma Foie Gras in Farmington, Calif. Foie gras, the silky soft delicacy derived from the livers of force-fed geese and ducks, is stoking a battle of epicurean ethics in Northern California. Foie gras lovers are rejoicing after a federal judge in Los Angeles blocked Californias ban on the sale of the fatty duck and goose liver. Judge Stephen V. Wilson on Wednesday, Jan. 7, 2015 permanently blocked the state attorney general from enforcing the law, which took effect two years ago. (AP Photo/Eric Risberg) less FILE - In this Dec. 9, 2003 file photo, Jorge Vargas uses a funneled pipe to force-feed a measured dose of corn mush to a Moulard duck in its pen at Sonoma Foie Gras in Farmington, Calif. Foie gras, the silky ... more Photo: Eric Risberg / Associated Press Photo: Eric Risberg / Associated Press Image 1 of / 3 Caption Close Animal rights groups can sue Napa restaurant over foie gras 1 / 3 Back to Gallery

An animal-rights group can sue a Napa restaurant that served foie gras in what the restaurant’s chef described as a Boston Tea Party-style protest against California’s now-suspended ban on the delicacy, a state appeals court ruled Thursday.

Foie gras is made from the enlarged livers of ducks or geese that have been force-fed. La Toque’s head chef and managing partner, Ken Frank, had been an outspoken opponent of the law. So after the state law prohibiting manufacture or sale of the product took effect in July 2012, the Animal Legal Defense Fund sent an investigator to dine at the restaurant three times.

In each visit, the investigator asked for foie gras and was told he could have it for free along with the restaurant’s “tasting menu,” a sampling of entrees that is currently listed at $80 to $98, plus wine charges.

The animal-rights group said it spent three months pleading unsuccessfully with law enforcement authorities in Napa to act against the restaurant before suing to halt the servings.

Frank, meanwhile, had started handing out protest cards with each portion of foie gras. He submitted a court declaration saying he was “protesting the law, not breaking it,” and described his menu choice as “my way of dumping tea in the harbor.” And he argued that the suit interfered with his freedom of speech.

But a Napa County judge allowed the case to proceed and was upheld Thursday by the First District Court of Appeal in San Francisco. The court said the animal fund was likely to prove that the purported giveaway of foie gras was actually an unlawful sale, which can’t be legally justified as an act of free speech.

Although the investigator wasn’t charged a separate price for foie gras, it was “sold to him as much as any other part of the tasting menu,” Justice Mark Simons said in the 3-0 ruling. He also said the fund was entitled to sue under the law because it had something tangible at stake — it had lobbied in support of the legislation, spent time and money investigating the restaurant and contacting law enforcement, and had shown a “long-standing interest in the effective enforcement of the statute and in exposing those who violate it.”

The suit, and the law itself, still face a serious obstacle: a federal judge’s ruling in January that halted enforcement of the foie gras ban on the grounds that federal law regulates the ingredients in poultry products and does not allow more stringent state regulations. California is appealing the ruling.

Matthew Liebman, lawyer for the Animal Legal Defense Fund, acknowledged Thursday that the suit can’t proceed unless the federal judge’s decision is overturned. He said he’s confident of the outcome, because the California law regulates a procedure — force-feeding birds — and not an ingredient.

Paul Hoffman, a lawyer for La Toque’s owners, said they were disappointed by Thursday’s ruling but expect the case to be dismissed once the state law is thrown out.

Bob Egelko is a San Francisco Chronicle staff writer. E-mail: begelko@sfchronicle.com Twitter: @egelko