In 2004, California revised its Health and Safety Code to include provisions that prohibit the force-feeding of ducks, geese and other birds, which is perversely done in order to induce a diseased state (hepatic lipidosis) in which the bird's liver enlarges 7-10 times its normal size, otherwise known as foie gras on restaurant menus, literally, “fatty liver”. The statute also prohibits the in-state sale of products made from birds that have been force-fed.
The purpose of the law is simply to eliminate this barbaric treatment of animals, which is a regulatory field encompassed by states' police powers. The practice of force-feeding ducks and geese involves inserting a 10- to12-inch metal or plastic tube down the bird's esophagus and inundating their stomachs with an unnatural and often hot corn gruel. This violence is inflicted upon the birds 3 times per day during the final couple of weeks of their lives. Among the findings of the California Assembly were that the practice of force-feeding is “so hard on the birds that they would die from the pathological damage it inflicts if they weren’t slaughtered first” and that the “swollen liver can cause many health problems and eventually makes walking and breathing difficult for the bird. Further, the liver may hemorrhage due to its size.” According to a study by the Scientific Committee on Animal Health and Animal Welfare, the mortality rate of birds raised for foie gras has been found to be as much as 20 times higher than that of birds raised normally, due apparently to physical injury, heat stress and liver failure; force-feeding results in severe tissue damage to the throat muscles. PETA further documents: “The birds are kept in tiny cages or crowded sheds. Unable to bathe or groom themselves, they become coated with excrement mixed with the oils that would normally protect their feathers from water. One Newsweek reporter who visited a foie gras factory farm described the ducks as 'listless' and 'often lame from foot infection due to standing on metal grilles during the gavage.' Other common health problems include damage to the esophagus, fungal infections, diarrhea, impaired liver function, heat stress, lesions, and fractures of the sternum. Some ducks die of aspiration pneumonia, which occurs when grain is forced into the ducks’ lungs or when birds choke on their own vomit.” That the practice of force-feeding is an unnecessary infliction of pain and suffering upon the animals is hardly deniable. Even a non-graphic picture paints a thousand words:
At the time of the passage of the California law, several countries had enacted bans of force-feeding birds or the sale of foie gras products. The list continues to grow, with at least 16 countries currently having such bans: Argentina, Australia, Italy, the Netherlands, the Czech Republic, India, Luxembourg, Denmark, Finland, Norway, Poland, Israel, Sweden, Switzerland, Germany, and the United Kingdom. Israel is unique insofar as its Supreme Court, sitting as the High Court of Justice, found that the regulations governing force-feeding of birds were contrary to the Protection of Animals Law, and, in the absence of non-cruel regulations, ultimately prohibited the practice. At the time, Israel was the world's 4th largest producer of products made from the diseased livers of force-fed birds. In its findings, the California Assembly Committee also cited a 2004 Zogby poll of 1000 random US voters in which 77% agreed that force-feeding birds in order to produce foie gras should be banned, while 16% disagreed and 7% were unsure (see link above). It seems that the end is nigh for force-feeding birds.
The California legislature delayed implementation of its law for 7 and a half years as a transition period. In spite of this lengthy interval, a California restaurant and two companies (in New York and Quebec) that sell the diseased livers of force-fed birds filed suit challenging this law the day after it went into effect in 2012. The plaintiffs' principle argument is patently absurd in more than one respect. Without any basis in fact or law, they claimed that force-feeding ducks and geese is an “ingredient” of foie gras, and therefore is regulated by the Poultry Products Inspection Act (PPIA), 21 U.S.C. § 467e of which prohibits states from imposing new or different “ingredient requirements” for poultry products. Unfortunately, in 2015 Judge Stephen Wilson of the US District Court of the Central District of California swallowed this argument and issued a permanent injunction against implementing the law.
Force-feeding is clearly not an “ingredient” according to the ordinary definition of the word nor in the context of the PPIA. In its decision issued Friday reversing and remanding the district court's ruling and injunction, the Ninth Circuit panel highlights numerous uses of the term “ingredient” in the text of the PPIA, all of which refer to a physical component of a food product, just as the definition of the word indicates--e.g., “spices, flavoring, and coloring”; “acidifiers, antifoaming agents, artificial sweeteners, food binders and extenders, coloring agents, and proteolytic enzymes”. Decisively the Circuit court further explains:
Plaintiffs advanced two other vaguely related arguments that have no more basis in fact or law than does their primary argument--indeed, as the Circuit court shows, theses arguments are more explicitly refuted by the case law and the text of the PPIA. It seems unnecessary to discuss these. But anyone who wishes to defend plaintiffs' field and obstacle preemption arguments is welcomed to do so.
So is there any reason that states should be prohibited from banning cruelties inflicted on animals and products made from these animals, such as the activity of force-feeding birds and products made from the diseased livers of these tormented birds?
Do you support banning the force-feeding of birds to induce hepatic lipidosis?
The purpose of the law is simply to eliminate this barbaric treatment of animals, which is a regulatory field encompassed by states' police powers. The practice of force-feeding ducks and geese involves inserting a 10- to12-inch metal or plastic tube down the bird's esophagus and inundating their stomachs with an unnatural and often hot corn gruel. This violence is inflicted upon the birds 3 times per day during the final couple of weeks of their lives. Among the findings of the California Assembly were that the practice of force-feeding is “so hard on the birds that they would die from the pathological damage it inflicts if they weren’t slaughtered first” and that the “swollen liver can cause many health problems and eventually makes walking and breathing difficult for the bird. Further, the liver may hemorrhage due to its size.” According to a study by the Scientific Committee on Animal Health and Animal Welfare, the mortality rate of birds raised for foie gras has been found to be as much as 20 times higher than that of birds raised normally, due apparently to physical injury, heat stress and liver failure; force-feeding results in severe tissue damage to the throat muscles. PETA further documents: “The birds are kept in tiny cages or crowded sheds. Unable to bathe or groom themselves, they become coated with excrement mixed with the oils that would normally protect their feathers from water. One Newsweek reporter who visited a foie gras factory farm described the ducks as 'listless' and 'often lame from foot infection due to standing on metal grilles during the gavage.' Other common health problems include damage to the esophagus, fungal infections, diarrhea, impaired liver function, heat stress, lesions, and fractures of the sternum. Some ducks die of aspiration pneumonia, which occurs when grain is forced into the ducks’ lungs or when birds choke on their own vomit.” That the practice of force-feeding is an unnecessary infliction of pain and suffering upon the animals is hardly deniable. Even a non-graphic picture paints a thousand words:
At the time of the passage of the California law, several countries had enacted bans of force-feeding birds or the sale of foie gras products. The list continues to grow, with at least 16 countries currently having such bans: Argentina, Australia, Italy, the Netherlands, the Czech Republic, India, Luxembourg, Denmark, Finland, Norway, Poland, Israel, Sweden, Switzerland, Germany, and the United Kingdom. Israel is unique insofar as its Supreme Court, sitting as the High Court of Justice, found that the regulations governing force-feeding of birds were contrary to the Protection of Animals Law, and, in the absence of non-cruel regulations, ultimately prohibited the practice. At the time, Israel was the world's 4th largest producer of products made from the diseased livers of force-fed birds. In its findings, the California Assembly Committee also cited a 2004 Zogby poll of 1000 random US voters in which 77% agreed that force-feeding birds in order to produce foie gras should be banned, while 16% disagreed and 7% were unsure (see link above). It seems that the end is nigh for force-feeding birds.
The California legislature delayed implementation of its law for 7 and a half years as a transition period. In spite of this lengthy interval, a California restaurant and two companies (in New York and Quebec) that sell the diseased livers of force-fed birds filed suit challenging this law the day after it went into effect in 2012. The plaintiffs' principle argument is patently absurd in more than one respect. Without any basis in fact or law, they claimed that force-feeding ducks and geese is an “ingredient” of foie gras, and therefore is regulated by the Poultry Products Inspection Act (PPIA), 21 U.S.C. § 467e of which prohibits states from imposing new or different “ingredient requirements” for poultry products. Unfortunately, in 2015 Judge Stephen Wilson of the US District Court of the Central District of California swallowed this argument and issued a permanent injunction against implementing the law.
Force-feeding is clearly not an “ingredient” according to the ordinary definition of the word nor in the context of the PPIA. In its decision issued Friday reversing and remanding the district court's ruling and injunction, the Ninth Circuit panel highlights numerous uses of the term “ingredient” in the text of the PPIA, all of which refer to a physical component of a food product, just as the definition of the word indicates--e.g., “spices, flavoring, and coloring”; “acidifiers, antifoaming agents, artificial sweeteners, food binders and extenders, coloring agents, and proteolytic enzymes”. Decisively the Circuit court further explains:
The PPIA . . . authorizes the USDA, acting through its Food Safety and Inspection Service (“FSIS”), to prescribe standards of identity or composition for poultry products. 21 U.S.C. § 453(h)(7); 9 C.F.R. § 381.155(a)(1). These “ingredient requirements” cannot be read to reach animal husbandry practices because the federal law “does not regulate in any manner the handling, shipment, or sale of live poultry.” H.R. Rep. No. 85-465 at 1 (1957), reprinted in 1957 U.S.C.C.A.N. 1630, 1630 (emphasis added).[2] The USDA has even represented in legal filings that “[t]he PPIA is wholly silent on the treatment of farm animals, (including feeding procedures) or methods of slaughter for poultry.” Motion for Summary Judgment, at 2, Animal Legal Def. Fund v. USDA, No. 12-cv-04028 (C.D. Cal. Apr. 22, 2016), ECF No. 67; id at 3 (“[The FSIS] has no authority to regulate the care or feeding of birds prior to their arrival at the slaughter facility.” (citing Decl. of Alice M. Thaler, Senior Director for Program Services in the Office of Public Health Science, FSIS, USDA, at ¶¶ 6–7, Animal Legal Def. Fund v. USDA, No. 12-cv-04028 (C.D. Cal. Nov. 28, 2012), ECF No. 26-1)).[3] Accordingly, the PPIA’s “ingredient requirements” are limited to the physical components of poultry products and do not reach the subjects of animal husbandry or feeding practices.
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“Force-fed” is not a physical component that we find in our poultry; it is a feeding technique that farmers use.
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“Force-fed” is not a physical component that we find in our poultry; it is a feeding technique that farmers use.
Plaintiffs advanced two other vaguely related arguments that have no more basis in fact or law than does their primary argument--indeed, as the Circuit court shows, theses arguments are more explicitly refuted by the case law and the text of the PPIA. It seems unnecessary to discuss these. But anyone who wishes to defend plaintiffs' field and obstacle preemption arguments is welcomed to do so.
So is there any reason that states should be prohibited from banning cruelties inflicted on animals and products made from these animals, such as the activity of force-feeding birds and products made from the diseased livers of these tormented birds?
Do you support banning the force-feeding of birds to induce hepatic lipidosis?
