Beyond foie gras

Lawsuit alleges NYC legislative overreach

Posted 6/7/22

SULLIVAN COUNTY, NY — When the New York City Council passed a law banning the sale of foie gras, it knew the law could have a major impact on foie gras production. That was the point for …

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Beyond foie gras

Lawsuit alleges NYC legislative overreach


SULLIVAN COUNTY, NY — When the New York City Council passed a law banning the sale of foie gras, it knew the law could have a major impact on foie gras production. That was the point for several key supporters.

“My legislation to prevent the sale of force-fed foie gras will finally put an end to one of the cruelest and most inhumane practices in the food industry,” said Carlina Rivera, who had introduced the bill, in a public hearing on October 30, 2019.

Mayor Bill de Blasio echoed Rivera’s sentiments in a statement after he signed the bill on November 25: “The days of foie gras are gone and foie-gotten in New York City. A new law will end this cruel practice in our city for good.”

That intention has a problem; the “cruel practice” of foie gras production doesn’t take place in New York City. It takes place at a pair of farms in Sullivan County, 100 miles away from the city’s jurisdiction.

“There’s no end to the reaching out if this is permissible,” said Marcus Henley, vice-president of Hudson Valley Foie Gras.

Hudson Valley and La Belle Farms have fought against the ban from its beginning; both are historic businesses, and both have their operations in Sullivan County. They brought over one hundred farmworkers and supporters to New York City when the council held its public hearings, and invited council members to their facilities to see foie gras production in action. Those actions didn’t stop the ban from going through; to those who attended the public hearings, it seemed the New York City Council had already made up its mind.

With the council unmoved and unmovable, the farms have recourse in the courts. They couldn’t take legal action in 2019, when the law first passed. The ban wouldn’t take effect until November 25, 2022, and the farms couldn’t file a lawsuit until they suffered harm, said Henley.

The ban is still several months away. But foie gras production takes time, like any type of farming—the farms are bringing ducks now that will get sold as foie gras in December—and the ban is already starting to affect the farms’ planning.

That effect has brought the farms to the point of filing a lawsuit, and they did so on May 20.

The lawsuit filed by Hudson Valley and La Belle claims that New York City is attempting to indirectly regulate the foie gras industry in Sullivan County through its sales ban, and is overstepping its jurisdiction in doing so. By attempting to ban a practice that’s permissible under state and federal law, and that takes place mostly outside New York City, the council has overstepped its jurisdiction under home rule, and the law is unconstitutional, according to the lawsuit.

It claims as well that the law conflicts with a statute of New York’s Agriculture and Markets law that protects farming carried out in agricultural districts. Both farms lie within agricultural districts in Sullivan County, and Statute 305-A prevents municipalities from unreasonable restrictions on farming practices in agricultural districts, unless public health or safety is threatened.

“We contend, and the New York State Department of Agriculture agrees, that imposing a blanket sales ban on food products that the USDA certifies as wholesome and saleable is unreasonable under AML S. 305-A,” said Edward Phillips, a lawyer with Keane and Beane who is representing Hudson Valley and La Belle.

The Department of Agriculture and Markets supported that reading of the law in a pair of letters it sent to the New York City council in 2020. The department agreed with the farms that the council adopted the law as an animal welfare measure to regulate operations outside its jurisdiction, and that the ban unreasonably restricts Hudson Valley and La Belle.

The farms hoped for relief from those letters, said Henley. But the city responded with a letter of its own, and a third final letter has languished,  waiting for a signature from the governor since Andrew Cuomo resigned.

The lawsuit will go to court on July 26; that’s when the judge will hear oral arguments from all parties. Hudson Valley and La Belle hope that they will receive a preliminary injunction from the judge, stopping the ban from taking effect while the lawsuit resolves.

Hudson Valley and La Belle both sell large quantities of foie gras to buyers in New York City. La Belle is set to lose around $3 million in business from the ban, and anticipates cutting most of its 100 employees. Hudson Valley stands to lose around $5 million, and anticipates losing 20 to 25 percent of its approximately 190-person workforce.

These figures understate the true impact of the ban on Sullivan County’s economy. As two of the county’s largest businesses, Hudson Valley and La Belle generate a knock-on economic impact of around $150 million. That’s money that comes in from outside sources, said Henley, making it even more valuable; it replenishes the economy, rather than circulating money around in a closed loop.

An injunction could keep that money flowing for a little while longer. It’s something businesses are counting on in Sullivan County and in New York City; according to Henley, business is booming as the city’s fine-dining recovers from the pandemic, and hasn’t yet seen a chill from the ban.

The injunction also keeps active the practices of foie gras production that led to the ban in the first place.

The practice of gavage is at the heart of critics’ concerns. Gavage takes young ducks and force-feeds them through a tube two to three times per day, two to three weeks before their slaughter. That process expands their livers up to 10 times their normal sizes. The livers then get processed and packaged as foie gras.

Advocates for the foie gras industry claim that gavage does not harm the ducks; if the ducks are harmed or stressed, they may refuse to eat, or their livers may become spoiled.

The American Veterinary Medical Association weighed in with a 2014 literature review that stated, “In the absence of empirical studies, the welfare of [a healthy force-fed duck] is difficult to judge, as is the prevalence of more severe consequences to welfare.”

Critics of foie gras include the Humane Society of the United States and the Brooklyn organization Voters for Animal Rights, together with members of the New York City council. The production of foie gras has been banned in countries including Germany, the United Kingdom and Israel, according to Animal Equality.

Whether the practice of gavage harms the ducks isn’t at stake in the lawsuit. What that lawsuit targets is New York City’s attempt to regulate the practice with a sales ban.

There are a lot of practices beside gavage that New York City might find offensive, said Henley: beef that isn’t from grass-fed cows, eggs that aren’t from cage-free chickens, and the like. If the city can use its status as a major market to impact those industries through sales bans, the boundaries of home rule power start to mean a lot less.

“Suddenly, New York City’s the most powerful place in the whole world,” said Henley.

This article follows up on an award winning five part series on foie gras and the economy of Sullivan County written by Helen Demeranville and published by the River Reporter in 2021. Catch up on the full story at the links below.

Part I: Fowl Play

Part II: All duck or no dinner

Part III: The wheat from the chaff

Part IV: Ducks out of water

Part V: Down and dirty at city hall

New York City Council, foie gras, Carlina Rivera, Hudson Valley Foie Gras, La Belle Farms, foie gras ban


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