California battle over force-feeding ends badly for foie gras fans

The food industry, including dozens of fine-dining chefs in California, lost the latest round in the battle over the production and sale of foie gras in the state.

The U.S. Supreme Court on Monday declined to hear an appeal of a 2004 foie gras ban, thereby upholding the controversial law in California.  The ban, in effect since July 1, 2012, prohibits the production or sale in California of any product, such as fattened duck liver, produced by force-feeding birds.

Michael Tenenbaum, the Santa Monica attorney representing the groups challenging the ban, said the fight is not over. He said the constitutional challenge of the ban will go back to a Los Angeles federal district court, which had initially overturned the ban in 2015. At that time, a federal judge permanently blocked the state attorney general from enforcing the foie gras ban.

Artisan Foie Gras at Campton Place in San Francisco

In the earlier ruling, the judge found that the federal government’s authority to regulate foie gras and other poultry products supersedes the state’s.

But two years later, the 9th Circuit Court of Appeals struck down that ruling. 

Foie gras producers, including a Canadian nonprofit that represents duck and goose farmers, vowed to take the case to the U.S. Supreme Court.

But on Monday, the high court chose not to review the case, handing a victory over to animal-rights advocacy groups such as PETA, who advocated for the ban.

Foie Gras Torchon

Tenenbaum said the court’s decision not to review the case does not reflect the merits of the case. He maintains that federal poultry regulations pre-empt California’s ban on foie gas. He plans to ask the court to continue allowing the sale of foie gras in the state “while the case proceeds to trial.”

For years, the restaurant industry has balked at the ban. Many rogue chefs and restaurant owners have been unwilling to stop serving the French delicacy.  In 2013, Napa chef Ken Frank of La Toque attempted to circumvent the law by serving foie gras for free, instead of selling it.

On Monday, California chefs reacted with frustration to Supreme Court’s inaction, many stating that the decision to eat foie gras should be left up to diners, not lawmakers.

“We will follow the law, but they should have the people decide for themselves if they want to have foie gras or not,” said Florent Marneau , chef-owner of Marché Moderne in Newport Beach, Calif.

The critically acclaimed dining venue is considered one of the best French restaurants in Southern California. The classically trained Marneau brings a modern flair to a menu that regularly includes French staples including foie gras.

Just last week, Marche’s Instagram page boasted a terrine of foie gras made with pears marinated in BLiS Bourbon Barrel Aged Maple Syrup.

“Top Chef” Season 13 finalist Amar Santana, who operates two fine dining restaurants in Orange County, Calif., said the laws in California don’t make sense.

“Weed is legal. Foie gras is illegal?” said Santana, whose restaurants both serve dishes with foie gras. “Soon everyone in California will be eating tofu.”

One of the most popular tapas dishes at his Spanish steak house, Vaca, is a smoked chicken cannelloni made with a decadent foie gras sauce.  He doesn’t plan to alter the menu.

“As soon as I figure out where to get [foie gras] again, the dishes won’t change,” he said.

PETA urged diners “to blow the whistle on any restaurant that's caught serving this illegal and hideously produced substance.”

Restaurants face a fine of up to $1,000 for each violation.

Contact Nancy Luna at [email protected] 

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