Judge strikes down California ban on serving foie gras

“A federal judge struck down California’s ban on foie gras, allowing restaurants to serve up the delicacy for the first time in two years.” He ruled that the ban infringed on federal authority. While restaurants now can import the delicacy from other states, a separate ban on producing it in California remains in place. [San Francisco Chronicle, SF Eater, opinion, Linnekin, earlier]


  • So foie gras is back on the menu in California not because it never should have been banned in the first place, but because a judge ruled that a Federal law trumps a state law when it comes to something within a state?

    This is like saying “California can’t tell you what to eat but we, the Federal government can pass laws guaranteeing that we can tell you what you can and cannot eat.”

    Relying on a Federal law to regulate foods vs. relying on a state law to regulate food doesn’t address the issue of whether any such law should exist in the first place.

  • Where would you draw the line?

    Can a government tell us it is illegal to serve poison, because poison is, well, dangerous? Can a government tell us that it is illegal to serve food that is rodent or insect infested?

    Granted, this case was about fattened goose livers and the alleged abuse of the geese. The food wassafe, edible, and (IMO) delicious. There is a spectrum from over-zealous government regulation to anarchy. Within that spectrum, I would argue that there is a zone of regulations that need to be enforced.

    I think drawing the line at protecting geese is outside the zone. You seem to think that there should be no zone whatsoever and anarchy should rule.

  • gitarcarver, IANAL but doesn’t this fall under the Interstate Commerce clause, or sumptin’?

  • Oh, Allan, now you are misrepresenting gitarcarver with your hyperbole. But I will indulge you.
    There are laws against causing physical harm to someone, via poisoning, rodent droppings, etc. That is sufficient. Those are laws that derive from the natural rights of the people, i.e. “supreme executive power derives from a mandate from the masses.” if an individual does not have the natural right to enforce a rule (law, regulation, what have you), then a group of individuals does not have that right.
    Creating “a zone of regulations that need to be enforced” is simply “outdated imperialist dogma which perpetuates the economic and social differences in our society”. Beside the fact that the government does not have the right to make this law (though it has accumulated the power to do so), in this case, no regulation is needed. Do I propose anarchy? Obviously not. I support legitimate laws such as not poisoning someone.
    Now why don’t you take your red herring out into the forest to cut down the largest tree.

    Igor, it appears that the judge is invoking the Interstate Commerce Clause (I did not read his summary) and gitarcarver is (correctly, IMHO) pointing out that the reasoning is faulty although the result is correct. As we like to say around here, “Right horse, rong barn.” (Not a typo.)


  • Allan,

    Where would you draw the line?

    A great deal farther away from what it is now. You ask about poison and rat infested foods and whether the government should allow people to eat or digest such things.

    My answer would be “yes.” If the company making the product clearly labels the food as being poison or rat infested, why should I as an adult not be able to decide whether to eat something like that? If the product is not labeled, then the company should be held accountable, but that is another issue.

    I am not an anarchist by any stretch of the imagination. I think that allowing people to make their own informed decision (and one that does not harm others) is something that the government should protect, rather than seek to restrict.

    According to the FDA’s website, the FDA came into being (albeit not called the FDA) in 1906. Dear Lord in heaven how in the world did we all survive for hundreds of years in this country without a government agency telling us what we can and cannot eat? How did we survive over one hundred years after the country’s foundation without the government telling us what we can and cannot eat?

    Tell me Allan, are you saying that only the government has the ability to tell you what is right /wrong, and beneficial / harmful and that you do not have the cognitive ability to make that decision on your own?

    I tell you it’s a miracle there were any of us left to inhabit this land prior to 1906. Hallelujah! The government and regulations have saved us all!


    I thought of that as well. Part of the case involved interstate commerce which I assume would fall under the Interstate Commerce clause. There are two issues I have with that. First, the judge refers to the “Poultry Products Inspection Act” (PPIA) and not the Constitution. While the PPIA may be based on the Commerce Clause, I’d rather the judge use the Commerce Clause rather than saying his ruling is based on a law written by the Federal government giving authority solely to the Federal government for poultry products. This is where my second objection comes in. The PPIA regulates ALL poultry, even those birds that never leave a state. In short, the law seems to overstep from just interstate to intrastate as well.

  • I think there needs to be a line drawn.

    As I said, I think the fois gras ban went too far. I don’t know where the line should be. However, I have a tough time criticizing a regime that protects food safety and gives consumers more information. I don’t have a tough time criticizing laws that protect domesticated geese and ducks.

  • We need the government to ban service of insect-infested food because if not for such a law, we’d eat it?

    No serious person advocates anarchy. In my view, however, each and every government regulation is inherently coercive and therefore requires a compelling justification, as opposed to the sort of “oh what the hell it might just work” rationale that now seems to prevail. There’s a pretty compelling justification for outlawing murder and assault, hence, the service of poisoned food is illegal. But there’s no compelling justification for banning a wholesome food that’s been served for far longer than any of us have been alive.

  • I often take the libertarian side of arguments, and see respectable arguments on both sides of a foie gras ban, but I am troubled by this court decision. Surely non-discriminatory bans in States that feel strongly about the issue are better than a Federal ban that some States strongly oppose? Assuming enforcement is limited to local restaurants that should know local law, a States’ rights approach here does not raise the cost and risk issues of some other “patchquilt” regulations.

    States are free to set their own alcohol policies as spelled out by the Twenty-First amendment.

    Does this court decision imply that States cannot ban recreational drugs they dislike? If so, I presume that Congress has the authority under the interstate commerce clause to delegate such banning power to individual States.

  • Allan,

    I would argue that if you don’t know where the line should be drawn, it is better not to draw a line at all as the line will be wrong.

    You wrote:

    However, I have a tough time criticizing a regime that protects food safety and gives consumers more information.

    That’s a bit of moving the goal posts here because “protecting food safety” and “more information” was not within the confines of you question on rat poison.

    If you want to say that “food product safety” is that which insures producers make products that unwillingly and unknown to the customer may make them ill, I would support that. I am not going to test every piece of chicken I buy for salmonella and I don’t see any birds in the store with a label saying “NOW IMPROVED WITH SALMONELLA!”

    The issue are things like raw milk and raw milk products. The FDC has banned raw milk and is seeking to ban some products made from raw milk. This blog has covered this rather extensively. While there are risks to some people from consuming raw milk and raw milk products, does that mean the majority of the population should be denied the use of raw milk if they understand the risk and the product is labeled accordingly?

    School lunch programs (which ironically are discussed in another post today on this site) are another example of the type of “protectionism” that the government engages in. Think about this for a moment: the government mandated changes in lunch programs and one of the reasons is so kids can learn to make good choices.

    How in the world can a kid “make good choices” when you are removing choices to begin with?

    The government in many cases has taken on the mantra of protecting people. Protecting them from what? Their own choices?

    If I want to have raw milk, why should I not have that choice? (“Udder” than the government telling me I cannot.) If I want to drink moonshine, why should I not be able to? If I want to use a homeopathic remedy that is not approved by the FDA, why should I not be able to?

    I understand that my choices should not negatively impact others. That’s a given.

    But far too often the idea of “protecting consumers” is more of a money grab and a power grab for the government (or as you call it, “a regime.”)

  • […] gras is a fancy food delicacy, and until a few days ago, it was also an outlaw product in the State of California. A federal judge in Los Angeles–our […]