Not All it's Quacked Up to Be: Why State and Local Efforts to Ban Foie Gras Violate Constitutional Law

Abstract

What do Egyptian Pharaohs, Roman Jews, French farmers, immigrants to America, consumers of haute cuisine - and the chefs who create it - and business owners in Long Island, New York, and Sonoma, California have in common? Strangers in time, language, culture, and geography, these groups form an unlikely cohort around the humble duck and, more specifically, the love of its liver. Foie gras, as the fatty liver of a duck, goose, or mulard is commonly known, is an ingredient that has transcended societies and social status throughout the course of human history. And now, this delicate dish is at the center of a controversy in which its protagonists seek to transcend the dictates of the U.S. constitution, and constitutional law, in an effort to ban the food from production and/or sale in several states and large cities.

This article examines the basic historical and economic background of foie gras as a foodstuff and commodity, and then goes on to describe the successful foie gras legislation enacted by the State of California and the City of Chicago, as well as the past and current foie gras legislation proposed by several other states and the City of San Diego. From there, this article examines the overall foie gras legislation through the lens of the Commerce Clause, the federal pre-emption doctrine, particularly as it relates to international trade and trade regulation, the Dormant Commerce Clause, the doctrines of void for vagueness and overbreadth, and the Takings Clause, and concludes that the foie gras legislation is unconstitutional under each of these areas of constitutional jurisprudence. Further, this article argues that the foie gras legislation is not only unconstitutional for a variety of reasons, it also is the perfect example of the reality of the slippery slope argument, and constitutes the opening salvo in an effort to curtail individual choice in foodstuff consumption that undermines the very essence of the freedoms afforded under the constitution.