California’s Foie Gras Ban – Ask an Attorney

Posted on July 31, 2012

On July 1, a California law banning both the force-feeding of ducks and geese for foie gras production and the sale of foie gras went into effect. Since then, a vocal minority of restaurateurs and industry insiders have been publicly announcing their intentions to exploit legal loopholes to flout the ban, while others have questioned whether the ban will be enforced vigorously, or even at all.

In this Q&A session, attorney Scott Heiser, director of the Animal Legal Defense Fund’s Criminal Justice Program, answers some questions submitted by ALDF supporters regarding California’s recently enacted foie gras ban.

Question “What exactly is the point of a ban with no enforcement?”
-Mila B.

Answer Given the large volume of work local law enforcement is dealing with, the harsh reality is that police and government lawyers have to triage cases just like an army medic on the battlefield–the exception being that there are political ramifications for public officials who allocate resources in a manner that alienates voters. In this case, there is also the possibility that some of those officials who are not currently willing to enforce the ban are waiting to see how the foie gras industry’s pending federal case challenging the constitutionality of the California ban plays out before they invest time and money into these cases.

While enforcement is a crucial component of this law designed to protect birds from cruel force-feeding, in the long term, legal norms do have value even without enforcement, because they are hallmarks of progress and can on their own effect change in society. California’s ban is a reflection of the now-prevailing sentiment that animals should be protected from the most egregiously abusive of farming practices. In the same way that seat belt laws have led to a drastic reduction in automobile accident fatalities despite minimal enforcement, the public discussion about the cruelty of force-feeding ducks and geese will on its own lead many retailers and consumers to reject foie gras, regardless of whether the ban is being strictly enforced in their jurisdiction.

That said, enforcing this ban is a critical way for prosecutors–who might otherwise only be able to pursue charges for perhaps a dozen or so individual animal victims during the course of their careers–to seek justice for the hundreds of thousands of birds who endure horrific cruelty in foie gras production.

Question “Having officials ignore or distort the intention of a law is unconscionable. What kind of message does this send to citizens when their elected officials or law enforcement displays such little respect for the law?”
-Denise K.

AnswerOne inference is that some public officials disagree with the law and aren’t going to enforce it given their personal views. This is, however, generally inconsistent with the oath public officials swear to before taking office. Another inference is that these officials just don’t believe that they have the time, staff, or political exposure to prioritize these cases. However, that argument doesn’t carry much weight given that this particular ban was passed in 2005 with a seven-year phase-in–there was ample time to plan for and allocate money to enforce this law.

Question “Does the law actually say anything about ‘consuming’ foie gras in the state?… I wasn’t aware of that language. How come restaurants say they can get away with giving it away as a gift to diners who are buying other food? Wouldn’t that kind of be like a drug dealer who just gives away drugs to people who buy some other token item from them, like a $20 sticker with a side of free drugs or something?"
-Lester S.

AnswerThe statutes (Cal. Health and Safety Code §§ 25980 – 25984) do not address the consumption of foie gras. Rather these statutes ban both the force-feeding of birds to produce enlarged [diseased] livers and the sale of a product that results from the force-feeding of birds. Given the absence of a possession or consumption ban in the current law (unlike California’s drug laws, which do cover possession & consumption of controlled substances), the game is on for those intent on attempting to subvert the clear legislative intent.

Another point to consider is one based purely on a cold cost/benefit analysis: the penalty for violating this law is only a civil fine “up to one thousand dollars ($1,000) for each day the violation continues….” There is no threat of a criminal conviction, no risk of jail, and no chance of losing one’s business license. If you can make $2,500 a week selling foie gras and the probability of getting cited for violating the ban is low, those motivated by ego and greed are likely to take a very predictable path.

Keep in mind that the foie gras ban is not a ban like prohibition was, designed to mandate morality for consumers. Rather, like laws that ban child pornography, the foie gras ban is not about protecting the consumer–it is about protecting the victims of cruelty. In this case, those victims are the ducks and geese who are force-fed until their bodies become diseased.

Question “If you are at a restaurant that you suspect is serving foie gras, where do you report them? I know of several in the L.A. area that are openly going to continue to serve it.”
-Pat L.

AnswerThe law expressly authorizes police officers to issue citations to violators–it also empowers a limited group of SPCAs that have qualified investigators to cite, but I’d go with the local police agency. Additionally, given that the true gatekeepers on these cases are the government’s attorneys, you should also concurrently report violators to the city attorney and the district attorney, in addition to local law enforcement.

Question “What is ALDF doing to make sure that the foie gras ban is enforced in California? Are there any steps being taken to provide similar protections to ducks and geese in other states or nation-wide?”
-Gus F.

AnswerIn an effort to effectively defuse the “we’re swamped” excuse for not pursuing these cases in court, ALDF is currently compiling a list of California attorneys who are willing to accept appointment as a special prosecutor to litigate these cases for those city attorneys and/or district attorneys who are just too busy with other cases. Once we have this list finalized, we’ll tender it to the California District Attorneys Association (city attorneys are members as well as DAs) along with our demand that these cases be litigated. (California attorneys interested in assisting as special prosecutors in such case may contact ALDF’s Tom Linney at tlinney@aldf.org.)

Not withstanding our work in conjunction with Chicago’s foie gras ban (that was later repealed) and repeated attempts to enact a similar ban in New York, ALDF is currently focused on ensuring enforcement in California. It is vital to demonstrate the viability of this ban in California to bolster its political credibility in other states, including New York, where Hudson Valley Foie Gras, one of the nation’s largest sources of foie gras, is operating.

Other Questions?

Have a question about the foie gras ban in California that we didn’t cover, or something you want clarified? Let us know in the comments section below! We will do our best to answer questions that advance the collective understanding of this important issue.