Foie gras ban proves confusing, hard to enforce State law bans the sale of the delicacy, but chefs and sellers say it's full of loopholes that determined devotees can exploit

Customer Sarah Jones of San Francisco takes a flier from a protester in front of Alexander's Steakhouse. Alexander's Steakhouse held their last farewell to foie gras dinner and fundraiser in San Francisco, CA Saturday June 30th, 2012. less Customer Sarah Jones of San Francisco takes a flier from a protester in front of Alexander's Steakhouse. Alexander's Steakhouse held their last farewell to foie gras dinner and fundraiser in San Francisco, CA ... more Photo: Michael Short, Special To The Chronicle Photo: Michael Short, Special To The Chronicle Image 1 of / 13 Caption Close Foie gras ban proves confusing, hard to enforce 1 / 13 Back to Gallery

It's the first hours of California's ban on the sale of foie gras, and already opponents of the legislation have been on the phone with their lawyers. They're confused, angry and looking for loopholes.

In the days leading up to the ban that took effect Sunday, sales of the duck liver delicacy have skyrocketed, with some zealous aficionados hoarding it and stocking their freezers.

The prohibition on selling products that are the result of force-feeding a bird to enlarge its liver beyond normal size - the method by which foie gras is made - is the first such law in the nation.

California has passed a number of animal-related laws in recent years. But not even 2008's Proposition 2, the farm-animal cruelty prevention act, which took on the powerful poultry industry by mandating better conditions for birds, has stirred up this much hoopla.

"We're certainly not telling anyone to break the law, but that's part of the problem. What exactly is the law?" said Rob Black, executive director of the Golden Gate Restaurant Association, the trade organization that, with a coalition of chefs, is trying to amend the legislation to allow the sale of foie gras as long as humane farming standards are employed.

Moving on

Animal rights activists say the fight is over. They argue that the language in the law is crystal clear, and are consulting with attorneys to try to enact similar bans across the country.

The Animal Protection & Rescue League is going after New York's Hudson Valley Foie Gras, the nation's largest producer, by suing the U.S. Department of Agriculture for allowing sales of foie gras anywhere in the country.

"If this kind of liver were being sold from any other animal, it would be considered adulterated," said Bryan Pease, co-founder of the animal rights organization. "We're seeking to have the same standard applied to foie gras. It would have the effect of being a nationwide ban."

But chefs and purveyors in California say the state law is far from clear. Restaurateurs want to know whether it's legal to cook foie gras and serve it without accepting payment. Purveyors from outside California want to know whether it's legal to ship it into the state.

"We've talked to several lawyers, and there are two conflicting schools of thought," said Hudson Valley's Marcus Henley. His company will stop shipping to California, even though the state accounts for nearly 19 percent of the firm's $16 million in annual sales. "The law says you can't sell in California, but if I'm in New York ... well there's no clarity there."

Even peace officers aren't exactly sure how they're supposed to enforce the new law. For example: How will they know the difference between pate made from a force-fed duck and a regular-fed duck?

"This is the struggle with laws that are written without taking loopholes or the people who will flaunt them into consideration," said Rebecca Katz, the director of San Francisco's Animal Care and Control, which has the responsibility to enforce the law in San Francisco.

She said that despite the agency's desire to uphold the ban, it can't cite restaurants for giving away foie gras or for preparing it for diners who bring it in themselves. The statute is clear that a sale must occur, she said.

"The letter of the law doesn't always match the spirit of the law," Katz said. "Here the spirit is to address animal cruelty. Unfortunately, the letter allows loopholes."

But, she said, the agency will do the best it can with limited resources.

As far as prosecutions, Alex Bastian, a spokesman for the San Francisco district attorney's office, said, "We'll review these cases as they come in." The law calls for a fine of up to $1,000 for each violation and up to $1,000 for each day the violation continues.

But the restaurant association's Black asked, "Is this the kind of role we want the courts playing when they're going through major budget cuts?"

Back-door dealings

He said he expects to see the same sort of back-door dealings that ensued during Chicago's short-lived ban, in effect from 2006 to 2008, when it was repealed. There, chefs reportedly gave away foie gras and charged $20 for the cracker on which it was served.

State Sen. Lois Wolk, D-Davis, said she's willing to work with fellow legislators to fix the law.

"I have told the chefs and producers of foie gras that if a proposal came forward to amend the California law, not repeal it, but amend it to create an acceptable humane standard for the production of this agricultural product, I would consider carrying the legislation next year," she said.

In the meantime, chef Ken Frank, who procured the very last lobes of California-made foie gras at his Napa restaurant, La Toque, said, "I do know it's not going to be difficult to get."

Although he plans to take it off his menu, Frank is already scheduled to donate his time to private charity events where he'll serve legally obtained foie gras.

Alexander's Steakhouse in San Francisco culminated its weeks of foie gras dinners with one final seating on Saturday at 11 p.m. To stay within the letter of the law, the restaurant collected payment for the $185 per-person meal before the midnight deadline.

In the weeks leading up to the ban, Bay Area restaurants saw their foie gras sales soar, as suppliers scrambled to keep up with the demand. Roland Passot of La Folie said he sold 1,000 orders in the past week alone; he jokes that it was "like Christmas in June," referring to his restaurant's busiest time of the year.

Holiday volume

Sara Wilson, owner of the Pasta Shop in Oakland, took customer orders for the last of the foie gras. The orders amounted to roughly $4,500, similar to what the Pasta Shop sells around the holidays.

Christine Falconer of Lafayette picked up her final order on Thursday - $150 worth of duck foie gras mousse and torchon.

"I'm sorry to see it go," she said.

Perhaps not as sorry as Guillermo Gonzalez. The proprietor of California's sole foie gras farm, Sonoma Artisan Foie Gras, was forced to close his business of more than two decades.

"I never thought I'd be in this whirlwind," he said. "We're taking it with honor and dignity."

Gonzalez is weighing his business options.

"For the last few years, I have been exploring several states, including Nevada obviously, because it's the one I can drive four hours and still live here in California. But it's not that easy starting over again after 26 years. My wife and I turn 60 this year, and we have to think it over."

Others are resigned to the new law and are making adjustments.

Laurel Pine, owner of the online specialty food store Mirepoix USA, moved in October from Napa to Reno, where foie gras sales are legal. "I wouldn't have left if I didn't have to," she said, but foie gras makes up 40 percent of her sales, with 25 percent of the orders coming from California.

After talking to attorneys, Pine is opening brick-and-mortar shops in Reno and Las Vegas to supplement her online sales, in the hopes that Californians will drive across the border to buy foie gras. She's also considering a system by which orders and payments could be made through a courier in Nevada.

Reconfiguring dishes

Chefs such as Hubert Keller are reconfiguring signature dishes. Keller's foie-topped Rossini Burger at his Burger Bar in Union Square has been replaced with the "Remixed Rossini Burger." Instead of foie gras, he's using lobster and stuffing the burger with braised short rib; it still costs $60.

"I turned the page because it's dragging it on," he said. "It's like when the smoking and no-smoking dining room came up. I'd much rather stay positive."

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