US court upholds California ban on ‘cruel’ foie gras

Pate de foie gras may once again go off restaurant plates in California, after judges ruled in favour of reinstating a ban on the delicacy made by force-feeding ducks and geese.

The decision on Friday by a three-judge panel of the 9th US Circuit Court of Appeals removes a roadblock to enforcing a 2004 ban, which has been inoperative for more than half the time it has been on the books.

Notably, India was mentioned by the court as being among the countries that bans the force-feeding of animals.

The ban was passed more than a decade ago after proponents said the process of fattening the livers of the birds was cruel and inhumane. The law took effect in 2011, but was blocked by a court in 2015, delighting chefs who wanted to serve the delicacy but leading to protests by animal rights groups.

While the unanimous decision by three judges won't immediately take effect, giving farmers and a restaurant time to seek further review, animal activists celebrated while chefs who serve the dish reacted with anger and confusion.

''The champagne corks are popping,'' said Ingrid Newkirk, president of the People for the Ethical Treatment of Animals. ''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.''

The main question was whether the state was banning an ingredient or a process.

''It is not the livers that are force-fed, it is the birds,'' Judge Jacqueline Nguyen of the appeals court wrote. ''The difference between foie gras produced with force-fed birds and foie gras produced with non-force-fed birds is not one of ingredient. Rather, the difference is in the treatment of the birds while alive.''

As of Friday night, the foie gras torchon was staying on the tasting menu at Melisse in Santa Monica, owner and two-star Michelin chef Josiah Citrin told The New York Times.

''I didn't really know it was coming; we'll just see what happens,'' he said. ''I enjoy eating foie gras, but it's not going to end what I do. I just don't like being told what we can and can't use.''

The legislature passed the law in 2004 after finding that forced feeding was cruel and inhumane. But it delayed enforcement for seven years so producers could come up with a new method of making the delicacy.

The typical method involves placing a 10- to 12-inch metal or plastic tube down a bird's esophagus to deliver large amounts of concentrated food. When the birds are force fed, their livers grow to 10 times their normal size. The process is ''so hard on the birds that they would die from the pathological damage it inflicts if they weren't slaughtered first,'' California's legislative analyst wrote when the bill banning foie gras was introduced.

Producers and a restaurant that serves foie gras filed suits to overturn the ban on sales. A district judge ruled in 2015 that the state ban illegally interfered with federal law.

Because federal law ''contemplates extensive state involvement, Congress clearly did not intend to occupy the field of poultry products,'' the 9th Circuit said.

The court noted Friday that Italy, the Netherlands, the Czech Republic, India, Luxembourg, Denmark, Finland, Norway, Poland, Israel, Sweden, Switzerland, Germany and the United Kingdom have some form of a ban on forced feeding or on foie gras products.

Marcus Henley, the manager at Hudson Valley Foie Gras in New York, said in an email to The Times, ''We will appeal. This process may take months. Until this appeal is completed, the law and the ban are not implemented and foie gras is legal to sell and serve in California.''

The challengers will have two weeks to ask a larger 9th Circuit panel to review Friday's ruling, after which the 9th Circuit must decide whether to consider it. That process could take weeks, if not months, attorneys said.

If the challengers lose again in the 9th Circuit, they can appeal to the US Supreme Court. Until then, at least, restaurants may still serve the dish.

Paul Shapiro, a spokesman for the Humane Society of the US, which pushed the original ban, said a broad spectrum of consumers in many countries have expressed revulsion at the practice of force-feeding poultry to satisfy the palates of a niche group of gourmands.

"If you can get Arnold Schwarzenegger, the former pope and the Israeli Supreme Court to agree that foie gras is inhumane, then there must be something to it,'' Shapiro said.

But a lawyer for the farmers and Hot's Kitchen said the fight was far from over.

''The ruling is disappointing, the reasoning is flawed,'' attorney Michael Tenenbaum said. ''Federal law is supreme when it comes to poultry products, whether it's foie gras or frozen chicken breasts.''