California’s ban on force-feeding ducks and geese to produce foie gras is on the Supreme Court’s summer menu.
It might be more than a mere delicacy. Thirteen states – including South Carolina, Missouri, Kansas and Georgia – are urging the court to review California’s prohibition. Serious constitutional principles are on the line, they and other critics of the law say.
“The Supreme Court should take the case because it raises an issue of extraordinary national importance in terms of whether one state, like California, can dictate the farming methods to be used by farmers in other states,” attorney Michael Tenenbaum said in an email interview Monday.
The issue, attorneys for the 13 states agreed in a supporting legal brief, “is of exceptional importance to the preservation of state sovereignty.”
Based in Santa Monica, Tenenbaum is representing opponents of the state’s law. These include a California restaurant company, a New York state foie gras producer and a Canadian organization of duck and goose farmers. The 13 states filed a separate brief making similar arguments.
“While some in the California Legislature may think that they have the power to tell farmers in other states what to do, at least 13 other states recognize that this unconstitutionally interferes with interstate commerce,” Tenenbaum said.
On Monday, in a federal courthouse in Los Angeles, attorneys were scheduled to argue over a different facet of the foie gras challenge.
At the Supreme Court, the case has stiff competition, which is one of the reasons challengers try to plump up the stakes with phrases such as “exceptional importance.” It’s a battle for recognition, with only a handful of winners tapped in coming months for a full Supreme Court hearing.
Thirty-nine cases are set for a high court review so far in the term that starts Oct. 6. These were winnowed from thousands of petitions, and more winnowing is to come.
By term’s end next June, the court will have heard roughly 75 cases. That means another 35 or so are yet to be selected during the court’s private conferences, in which at least four justices must agree for a petition to be granted. Many of the decisions will be made at the court’s so-called “long conference,” set for Sept. 29.
On June 30, when most Supreme Court attention was focused on the final two rulings from the court’s 2013-14 term, California Attorney General Kamala Harris and her team told the justices they needn’t bother digging into the foie gras case.
“State laws prohibiting the sale of products based on concerns about animal welfare, or simply on a social consensus concerning what is appropriate, are not unusual,” California’s brief says, noting that “several states prohibit the sale of horse meat for human consumption.”
The California Legislature adopted the foie gras ban in 2004, though it didn’t take effect until 2012. The provision says “a product may not be sold in California if it is the result of force-feeding a bird for the purpose of enlarging the bird’s liver beyond normal size,” which is typically how foie gras is produced.
California Deputy Attorney General Stephanie Zook, who led preparation of the state’s 14-page Supreme Court brief, cited evidence that “force-feeding causes ducks’ livers to swell to 10 times their normal size.” Violations of the law can be punished by fines of up to $1,000 per sale per day.
Last August, the 9th U.S. Court of Appeals rejected part of the challenge to the state law. The largest of the nation’s appellate regions, spanning the Western United States, the 9th Circuit often sends the most cases up to the Supreme Court. Frequently, its decisions fare poorly. During the 2013-14 term, the Supreme Court reversed the 9th Circuit on 11 out of 12 cases.
But to be selected from among the 9,000-plus petitions submitted to the Supreme Court annually, a case must also offer something special. Sometimes, this is a split among different circuits on a common question, prompting the high court to settle the matter once and for all.
“The circuit courts that have considered such bans on in-state sales of particular animal products have sustained them,” California’s brief pointedly noted, in urging the high court not to get involved.
Constitutional questions, too, may trigger Supreme Court interest. In the foie gras case, opponents of California’s law say it violates the Constitution’s dormant commerce clause, a phrase that refers to a prohibition on states enacting discriminatory barriers against commerce from other states.
“California may forbid its own farmers from using an established feeding technique,” Tenenbaum wrote in his petition, “but California cannot then seek to ‘level the playing field’ by depriving out-of state farmers of the competitive advantage they retain.”
Zook countered that “California has not sought to protect or favor local producers or economic interests,” adding that “it would make little sense” for the Supreme Court to weigh in before all the issues have been fully litigated in lower courts.