Judges reinstate California foie gras ban

Photo: Michael Macor, The Chronicle Foie gras is back in the news, as a court has reinstated...

Will foie gras be taken off California tables — again?

A three-judge panel from Ninth Circuit Court of Appeals has reversed a 2015 decision that overturned California’s ban on the pricey fatty liver dish made from force-fed ducks and geese.

Despite the new ruling issued by judges Harry Pregerson, Jacqueline H. Nguyen and John B. Owens in favor of reinstating California’s ban on foie gras, the controversial ingredient remains legal to buy, sell and consume in California — at least for the time being. The ruling will not take effect until the appeals process is concluded and a mandate is issued.

In this case, there will be an appeal by the plaintiffs, which consist of New York’s Hudson Valley Foie Gras, Southern California’s Hot’s Restaurant Group and a Canadian nonprofit corporation named Association Des Éleveurs de Canards et D’Oies du Quebec.

“As it stands right now, nothing changes. We absolutely are going to appeal,” said Cathy Kennedy, director of the Coalition for Humane and Ethical Farming Standards (CHEFS), a group working to fight the foie gras ban. She added that the appeals process will likely take months.

The original law (SB1520) was introduced in 2004 by then-Senator John Burton. It was passed in the Legislature that year and enacted in 2012, banning both the sale and production of foie gras.

HEALDSBURG, CALIF - March 19, 2017: Foie gras with gelee of momo-shu (a peach wine we made with last year's green peaches), pickled peach blossoms, seeded sable', olive oil jam, and almond cream at SingleThread Farms in Healdsburg. PHOTO BY JOHN LEE less HEALDSBURG, CALIF - March 19, 2017: Foie gras with gelee of momo-shu (a peach wine we made with last year's green peaches), pickled peach blossoms, seeded sable', olive oil jam, and almond cream at SingleThread ... more Photo: John Lee, Special To The Chronicle Buy photo Photo: John Lee, Special To The Chronicle Image 1 of / 3 Caption Close Judges reinstate California foie gras ban 1 / 3 Back to Gallery

In 2015, U.S. District Judge Stephen Wilson in Los Angeles stated California’s prohibition on the sale of foie gras violated the federal Poultry Products Inspections Act, which regulates the sale and distribution of birds and prohibits states from imposing certain conditions on food. Though production remained banned, sales were allowed to resume. Foie gras quickly went back on the menus of many upscale restaurants.

Less than a month after Wilson’s decision, then-Attorney General Kamala Harris filed an appeal, asking that the district court’s judgment be reversed.

The new ruling said the ban does not interfere with federal law, and the judges ruled the California law “did not impose a preempted ingredient requirement.”

“The difference between foie gras produced with force-fed birds and foie gras produced with non-force-fed birds is not one of ingredient,” Judge Nguyen wrote. “Rather, the difference is in the treatment of the birds while alive.”

The news has prompted celebration from animal rights activists who have long fought against foie gras.

“PETA has protested against this practice for years, showing videos of geese being force-fed that no one but the most callous chefs could stomach and revealing that foie gras is torture on toast and unimaginably cruel,” PETA president Ingrid Newkirk said in a statement.

Wayne Pacelle, CEO of the Humane Society, noted that the ruling could have implications beyond California.

“The Ninth Circuit’s unanimous ruling issued today gives states the right to ban the production and sale of cruel and inhumane products, as California did with its foie gras law,” he said in a statement. “The court correctly held that federal laws are not relevant to, and do not preempt, policies prohibiting the cruel force-feeding of birds.”

Chef Ken Frank, whose La Toque restaurant in Napa has been the site of animal rights protests, described the foie gras ban as a “terrible piece of legislation” with numerous enforcement issues.

“I have no doubt it will eventually fail,” Frank said. “This law was flawed when John Burton cooked it up, in a number of ways. It’ll take a lot of money and lawyering, but it will fail.”