ALBANY — New York City is appealing a decision by the State Department of Agriculture and Markets that prevented implementation of a ban on the sale of foie gras within city limits.
After more than two years of investigation into the matter, Ag and Markets ruled on Dec. 14 that the attempt to ban the delicacy violates a state farm statute designed to protect New York farmers from unreasonable restrictions by local governments. Foie gras is the livers of ducks or geese that are force-fed to artificially fatten the livers.
New York City had 30 days to appeal the decision. On Jan. 13, she filed a petition under a so-called Article 78 proceeding in the Albany Supreme Court challenging decisions by government agencies. The petition argues that the blocking of the ban was imposed “arbitrarily, arbitrarily, an abuse of power, in breach of due process, with errors of law and for a variety of reasons without and beyond jurisdiction”.
The next step in the matter will be written and oral arguments by both sides in court.
The ban was passed by the New York City Council in 2019 with a three-year delay in enforcement. Proponents argue that force-feeding, called gavage in French, is inhumane because a tube is inserted down a bird’s throat and cornmeal injected for several seconds two or three times a day for the last few weeks of its life, rapidly fattening the birds and their livers. Manufacturers of foie gras say force-feeding will not harm a duck, noting that the bird’s hard esophagus is designed to swallow whole fish and that ducks have no gag reflexes.
In May, two producers of Hudson Valley foie gras — Hudson Valley Foie Gras and La Belle Farms, both in the town of Liberty in Sullivan County — New York City, sued. They called on the state to prevent the ban from being implemented, arguing that it violates a section of the state Farm Code that protects farmers from local laws that “unreasonably restrict farming operations in a farming county,” as La Belle put it and do HVFG. A state judge in September ordered that the ban, which is due to take effect in November, not be enforced until the matter is resolved in court. The two farms produce virtually all of the country’s foie gras, with only one other farm in Minnesota selling it commercially.
The production of foie gras is banned in about 30 countries, including almost all of Europe, with the exception of Belgium, Hungary, Spain and France, where it is considered a national food treasure. France produces about 75 percent of the world’s foie gras, and its residents eat an average of half a pound a year, compared to Americans’ annual per capita consumption of 0.02 ounces, or half a gram, according to industry figures.
The New York lawsuit over foie gras is part of a larger dispute over who can dictate the treatment of animals raised for consumption.
In October, the US Supreme Court heard hearings in a case of national importance regarding a California law that bans the sale within the state of products made from animals not raised to California standards, regardless of where the products come from.
California passed a law in 2004 that went into effect in 2012, banning tube feeding and the sale of products that are the result of force-feeding. The law has been repeatedly challenged, with the most recent court ruling saying residents can buy foie gras from out-of-state producers for personal use, but not resell it in restaurants or markets. In response to an appeal by Hudson Valley Foie Gras, the Ninth Circuit Court of Appeals upheld the right to private sales in California last year, but declined to overturn the state ban.
The Supreme Court case, which is unlikely to rule for months, concerns a California ballot initiative called Proposition 12, which went into effect in January. It establishes minimum space requirements for laying hens, breeding pigs, and calves, and prohibits the sale of eggs, pork, and veal from animals not raised under those conditions, whether raised in California or other states. Its enforcement has been temporarily suspended by a judge while further regulations are developed.
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