The legal battle around foie gras, the fatty liver of a duck that is considered a luxury ingredient around the world, has been simmering for years, with the enforcement of its ban in flux. Now, the production and sale of the product is illegal once more as the U.S. Supreme Court declined to hear an appeal from farmers and chefs.

First, a little background

A law banning the sale and production of foie gras was passed in California in 2004. To give producers time to find a more humane process than force feeding ducks and geese through a tube called a gavage, courts allowed seven and a half year’s leeway. The ban officially went into effect on July 1, 2012. In response, non-California foie gras producers and sellers filed a motion to keep the law from taking effect. A district court ruled in California’s favor and a panel of three judges in the Ninth Circuit Court of appeals voted to keep the ban in place in August 2013.

In 2015, the ban was overturned by the U.S. District Court for California’s Central District, after an appeal from plaintiffs (including the Association des Eleveurs de Canards et D’Oies du Quebec, Hudson Valley Foie Gras, and L.A.-based Hot’s Restaurant Group) rewrote their legal pleadings with a new argument stating that the ban should be struck down because it clashed with the federal government’s Poultry Products Inspection Act. Chefs immediately pulled all the foie they’d been hiding in their walk-ins out and added it to menus across San Francisco (and California). At this point, foie gras could be sold and purchased, but not produced, in the state. (The state’s sole producer, Sonoma Foie Gras, went out of business immediately after the law went into effect in 2012.)

In 2017, the Ninth Circuit judges rejected the idea that the state’s law against the sale of foie gras should be preempted by federal law (the aforementioned Poultry Products Inspection Act), stating that California had a right to ban it on the basis of animal cruelty. The matter was sent back to the district for appeal, allowing the sale of foie gras until the appeals process had been completed, which brings us to the present.

On January 7, 2019, the Supreme Court declined to hear the case (the court’s decision not to hear a case is not solely based on merit; it hears 80 oral arguments each year from over 8,000 filed petitions), which sent it back to the Ninth Court of Appeals and then to the district court. The injunction was vacated, effectively reinstating the ban.

According to the office of California Attorney General Xavier Becerra, “The Attorney General is pleased with the court’s decision.”

What does it mean for SF restaurants?

As far as restaurants are concerned, the sale of foie gras is illegal in the state of California and it should be taken off of menus immediately. Restaurants cannot now, by law, serve foie gras or any product derived from a duck that was raised for foie gras.

“Peace officers and other officers with animal control responsibilities can now issue a citation for $1,000 for each violation, and up to $1,000 for each day it continues,” a spokesperson for the Attorney General told Eater SF. “Violators could be prosecuted by local district or city attorneys.”

While it’s unclear whether SFPD will be raiding restaurants to make sure foie gras isn’t served, chefs across the city are quietly using up inventory and making changes to menus. That includes the not-yet-open wine bar Verjus, from the team behind three-Michelin-starred Quince, and Cotogna. Set to open next week, the team is now reworking the menu to accommodate the ban, removing a small section that would have included seasonally changing foie gras dishes with toast prepared tableside in vintage toasters.

At tasting menu-only Avery, chef/owner Rodney Wages has removed his signature dish of tortellini en brodo with foie gras from the menu.

“When the ban first started, a lot of chefs used [foie gras] anyway, but for me at the time, I was a sous chef in someone else’s kitchen,” says Wages. “It wasn’t all on my shoulders.”

Now, he’s not taking the chance.

“For me, as an owner, it’s not worth the spotlight. There are so many other things we can use,” says Wages. “It’s disappointing that someone else is telling us what we can eat but at the end of the day, we’re going to follow the law.”

While San Francisco’s thriving fine dining scene isn’t likely to see closures as a result of the ban, “It’ll have a big impact on fine dining menus,” says Gwyneth Borden, executive director of the Golden Gate Restaurant Association. “Most fine dining restaurants in the world have some sort of foie gras menu item; it’s a definition of luxury like caviar or oysters, especially at French restaurants.”

Will we ever eat foie gras in a California restaurant again?

The fight isn’t over yet for farmers and chefs. A statement from CHEFS (Coalition for Human and Ethical Farming) reads:

The Supreme Court’s decision not to act on the petition means that the constitutional challenge now returns to the federal district court, i.e., the trial court, where it will again move forward in front of the same judge who, in 2015, granted summary judgment in favor of the farmers and restaurant group who launched the challenge. The challengers to the California ban will present multiple grounds for declaring it unconstitutional and intend to ask the court to maintain the status quo — i.e., for sales of foie gras to remain legal in California — while the case proceeds to trial.

Read the full statement here.

“We remain very confident in the integrity of the courts, and that we will ultimately prevail again,” said Michael Tenenbaum, the counsel representing the plaintiffs in the case.

In the meantime, fans of the luxury ingredient will just have to travel farther afield for a taste.