Appeals court takes foie gras off the menu in California

LOS ANGELES (AP) A federal appeals court reinstated California's ban on foie gras Friday, finding that a state law preventing sales of the luxury liver pate made by force-feeding ducks and geese was not pre-empted by the federal government's authority to regulate poultry products.

Animal rights activists and lawmakers who pushed the ban through the Legislature said the process of fattening the livers of the animals was cruel and inhumane.

PETA celebrated the unanimous ruling by three judges and said they planned to protest outside a Hermosa Beach restaurant that put the delicacy on the menu when it won a ruling two years ago from a lower court judge who blocked the ban.

"The champagne corks are popping at PETA," David Perle said. "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."

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State lawmakers voted in 2004 to bar California farmers from force-feeding birds with a tube, which is how foie gras is produced. That part of the law, phased in over seven years, was not challenged.

But foie gras farmers in Canada and New York and a Hot's Kitchen in Hermosa Beach targeted a second part of the law that banned the delicacy produced out of state from being served in restaurants or sold in markets.

They argued successfully in the lower court that state law was superseded by the federal Poultry Products Inspection Act. That law prevents states from imposing labeling, packaging or ingredient requirements different from federal standards.

The main question was whether the state was imposing its ban on 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."

The case was sent back to the lower court in Los Angeles.

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John Antczak contributed to this report.