Why the Chicago Foie Gras Ordinance Was Constitutional (And Should Not Have Been Repealed)

As I noted in my introductory post, my participation with ALDF began with an amicus brief that ALDF filed in support of the City of Chicago’s Foie Gras ordinance in the Seventh Circuit. As you may have heard, the City of Chicago recently repealed that ordinance. This was an unfortunate turn of events, which will moot the litigation. Despite the repeal, however, I thought it would still be worthwhile to briefly discuss the litigation that had occurred because of the likelihood that similar litigation will ensue when other cities or states pass foie gras bans like the one that had been in effect in Chicago.

The Chicago Foie Gras Ordinance prohibited the sale of foie gras by restaurants within the City of Chicago. On August 22, 2006, the effective day of the ordinance, the Illinois Restaurant Association, along with one of its member-restaurants, filed a one-count Complaint in the Circuit Court of Cook County Illinois against the City of Chicago, alleging the ordinance violated the Illinois Constitution. The Plaintiffs later amended their complaint to add a count for a violation of the dormant Commerce Clause of the United States Constitution. The City removed the case to federal court and filed a motion to dismiss the Amended Complaint on December 26, 2006.  

On June 12, 2007, the United States District Court for the Northern District of Illinois held that the City of Chicago did not violate the dormant Commerce Clause of the United States Constitution or the Illinois State Constitution when it enacted the Foie Gras Ordinance. See Ill. Rest. Ass’n v. City of Chicago, 492 F. Supp. 2d 891 (N.D. Ill. June 12, 2007) (Manning, J.). The Plaintiffs have appealed that decision in part solely on the dormant Commerce Clause issue.  

The thrust of Plaintiffs’ argument to the Seventh Circuit was two-fold.  First, that the Chicago Foie Gras Ordinance was protectionist in that it only placed restrictions on the sale of a product that was produced outside Chicago (and, in fact, the State of Illinois). Second, Plaintiffs argued that there was no legitimate local public interest in passing the Chicago Foie Gras Ordinance. In support of this second point the Plaintiffs argued that the humane treatment of animals was not a legitimate local public interest. It was on this second point that the ALDF filed its amicus brief.

Plaintiffs’ appellate brief is based upon the flawed premise that the dormant Commerce Clause elevates free trade above all other values, and therefore an ordinance codifying a community value regarding the humane treatment of animals does not constitute a legitimate local public interest under the dormant Commerce Clause. As we noted in our brief, both the United States Supreme Court and the Seventh Circuit have rejected that premise. To the contrary, the regulation of moral values related to animals has particular providence within the sphere of local and state government, a point the Seventh Circuit recognized recently when it upheld the Illinois Horse Meat Act. Cavel Int’l, Inc. v. Madigan, 500 F.3d 551, 557 (7th Cir. 2007) ("[A] state is permitted, within reason, to express disgust at what people do with the dead, whether dead human beings or dead animals.").

Thus, our argument to the Seventh Circuit was that just as the State of Illinois is allowed to pass a statute expressing disgust at the particular treatment of dead horses, so too is the City of Chicago allowed to express disgust with the treatment of living geese for the production of foie gras. Thus, it is inherently within the power of the City of Chicago to pass an ordinance that prohibits the sale of an offensive product, namely foie gras, within the jurisdictional borders of the City.

It is my hope that the legal analysis contained in our brief, and the City of Chicago’s brief, will allow future localities to defend their foie gras (or other animal protective legislation) from similar dormant Commerce Clause challenges.