Federal lawsuit challenges foie gras ban

California’s newly implemented ban on producing or selling foie gras is being challenged in a lawsuit filed Tuesday by a Canadian trade group, a New York company that’s the nation’s largest foie gras producer, and a company that owns two Southern California restaurants.

The lawsuit, filed in federal court in Los Angeles, claims the ban that took effect Sunday violates the U.S. Constitution’s due process clause because penalizes innocent conduct; violates the Commerce Clause because it excessively burdens interstate commerce without any legitimate local interest; and interferes with the federal government’s power to negotiate with foreign countries – like it has with Canada under the North American Free Trade Agreement for its duck products to be freely sold into the entire U.S. market.

If the law remains in place, the lawsuit says, “California will become the only place in the world where the sale of, for example, foie gras – and every other product that is ‘the result of’ ducks raised for their livers, including duck breast, duck fat and even duck feathers – would be banned within its borders.”

As a result, the law “destroys both the retail and the wholesale markets for the sale of duck products in California and places a substantial burden on interstate and foreign commerce,” the complaint says. “It does this without advancing any local interest (let alone a legitimate one) of protecting the citizens of California – or even of protecting any California duck.”

The plaintiffs want the court to issue a preliminary injunction so restaurants can keep serving foie gras until the lawsuit is settled. Right on, says Golden Gate Restaurant Association executive director Rob Black, whose group supports the lawsuit.

“The ban is riddled with ambiguities that prevent chefs, restaurateurs, and foie gras producers from understanding what is legal and how to comply,” Black said in a news release. “Instead of keeping foie gras sales in California, the law pushes sellers of foie gras to bordering states where cottage industries will now be set up to get around the ban.”

Josh Richman

Josh Richman covers state and national politics for the Bay Area News Group. A New York City native, he earned a bachelor’s degree in journalism from the University of Missouri and reported for the Express-Times of Easton, Pa. for five years before coming to the Oakland Tribune and ANG Newspapers in 1997. He is a frequent guest on KQED Channel 9’s “This Week in Northern California;” a proud father; an Eagle Scout; a somewhat skilled player of low-stakes poker; a rather good cook; a firm believer in the use of semicolons; and an unabashed political junkie who will never, EVER seek elected office.