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California Attorney General Seeks to Reinstate Foie Gras Ban

California Attorney General Seeks to Reinstate Foie Gras Ban



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Foie gras producers have said that they believe the sale of foie gras will remain protected by federal standards.

In January, U.S. Wilson invalidated California’s 2012 ban on the sale of foie gras, in a ruling that chefs across the state declared an overwhelming victory, with one chef comparing it to the end of Prohibition.

But now, just weeks later, the return of foie gras is threatened, just as animal rights groups have promised, by an appeal from California’s Attorney General, Kamala D. Harris, reports The New York Times.

In a statement, Nathan Runkle, founder of the group Mercy for Animals, praised Harris for fighting against “needless cruelty and violence,” and called for the ban to return on the grounds of a “moral obligation to protect all animals.”

On Wednesday, February 4, Harris filed an appeal to resume the state’s ban on the sale of foie gras, though restaurant groups and foie gras producers in North America say that they believe the recent ruling will be upheld.

"The decision was based on the simple fact that, in the field of meat and poultry, federal law is supreme,” attorney Michael Tenenbaum said in a statement. “California does not have the right to ban wholesome, USDA-approved poultry products, whether it's foie gras or fried chicken."


California Wants Foie Gras Back: Attorney General Appeals Federal Judge Ruling

Californians are demanding the stay of foie gras even as Kamala Harris, the State Attorney General, filed an appeal to the federal judge's ruling.

On Wednesday, Feb. 4, Harris filed an appeal to overturn a federal judge's decision which removed California's two-and-a-half-year ban on foie gras, making the delicacy which is made from geese or duck liver legal in the state.

In 2012, California prohibited the force-feeding of geese in a bid to fatten their livers so that they could be used to make foie gras. Restaurants in California that were found serving the gourmet dish stood to face up to $1000 in fines.

However, restaurants in south L.A. and foie gras producers from Canada sued a federal court. On Jan. 7, 2015, Stephen Wilson - a district judge - removed the ban on the grounds that the law was in conflict with the U.S. Poultry Products Inspections Act, which regulates the production of poultry.

However, Harris' single-page filing to the U.S. 9th Circuit Court of Appeals in San Francisco, says that state lawyers will debate the January ruling, which has seen the return of foie gras on Californian restaurant menus. The State Attorney General seeks to reinstate the ban.

The move to reinstate the ban on foie gras in California is being welcomed by Animal welfare groups.

"We are confident that the Ninth Circuit will correct the district court's mistake, and hope that the attorney general will hasten this result by expediting the appeal," revealed Stephen Wells, executive director of the Animal Legal Defense Fund.

Restaurant owners fighting the ban, on the other hand, are confident that the judge Wilson's judgment will not be overturned post the appeal.

"We're very confident that the district court's judgment will be upheld on appeal," opined Sean Chaney, chef-owner of Hot's Kitchen in Hermosa Beach.

Foie gras producers too believe that they will emerge victorious. The side which loses the case in the appeals court will likely move the case to the Supreme Court.

Till the time the case is under consideration by the Ninth Circuit, foie gras will stay legal in California.


Contents

The first known death sentence in California was recorded in 1778. On April 6, 1778 four Kumeyaay chiefs from a Mission San Diego area ranchería were convicted of conspiring to kill Christians and were sentenced to death by José Francisco Ortega, Commandant of the Presidio of San Diego the four were to be shot on April 11. [4] However, there is some doubt whether the executions actually took place. [5]

Four methods have been used historically for executions. Until slightly before California was admitted into the Union, executions were carried out by firing squad. Upon admission, the state adopted hanging as the method of choice. [9]

The penal code was modified on February 14, 1872, to state that hangings were to take place inside the confines of the county jail or other private places. The only people allowed to be present were the county sheriff, a physician, and the county District Attorney, who would in addition select at least 12 "reputable citizens". No more than two "ministers of the gospel" and no more than five people selected by the condemned could also be present. [9]

Executions were moved to the state level in 1889 when the law was updated so that hangings would occur in one of the state prisons—San Quentin State Prison and Folsom State Prison. According to the California Department of Corrections, although the law did not require the trial judge to choose a specific prison, it was customary for recidivists to be sent to Folsom. Under these new laws, the first execution at San Quentin was Jose Gabriel on March 3, 1893, for murder. The first hanging at Folsom was Chin Hane, also for murder, on December 13, 1895. A total of 215 inmates were hanged at San Quentin and a total of 92 were hanged at Folsom. [9]

California adopted the gas chamber as its sole method in 1937 (though two more hangings took place for people already sentenced). The first people to die in the San Quentin gas chamber (the only one in the state) were Albert Kessell and Robert Lee Cannon on December 2, 1938. Three more people had their death sentences carried out within two weeks. Up until 1967, 194 people were executed by lethal gas, including four women. The last person was Aaron Mitchell on April 12, 1967.

In previous eras the California Institution for Women housed the death row for women. [10]

1972 abolishment of capital punishment Edit

On April 24, 1972, the Supreme Court of California ruled in People v. Anderson that the state's current death penalty laws were unconstitutional. Justice Marshall F. McComb was the lone dissenter, arguing that the death penalty deterred crime, noting numerous Supreme Court precedents upholding the death penalty's constitutionality, and stating that the legislative and initiative processes were the only appropriate avenues to determine whether the death penalty should be allowed. [11] The majority's decision spared the lives of 105 death row inmates, including Sirhan Sirhan (assassin of Robert F. Kennedy) and serial killer Charles Manson. [12] McComb was so outraged by the decision that he walked out of the courtroom during its reading. [13]

Following the ruling, the Constitution of California was modified to reinstate capital punishment under an initiative called Proposition 17. In 1973 a new statute was subsequently enacted, making the death penalty mandatory for a number of crimes including first degree murder in specific instances, kidnapping during which a victim dies, train wrecking during which a victim dies, treason against the state, and assault by a life prisoner if the victim dies within a year. [9]

The debate over capital punishment played out in a somewhat similar fashion on the national level. On June 29, 1972, the United States Supreme Court issued its decision in Furman v. Georgia, holding all capital punishment statutes then in effect in the United States to be unconstitutional. On July 2, 1976, the Supreme Court, in Gregg v. Georgia, reviewing capital punishment laws enacted in response to its Furman decision, found constitutional those statutes that allowed a jury to impose the death penalty after consideration of both aggravating and mitigating circumstances. On the same date, the Court held that statutes imposing a mandatory death penalty were unconstitutional. [14]

In a later decision in 1976, the Supreme Court of California again held the state's death penalty statute was unconstitutional as it did not allow the defendant to enter mitigating evidence. A further 70 prisoners had their sentences commuted following this. The next year, the statute was updated to deal with these issues. Life imprisonment without possibility of parole was also added as a punishment for capital offenses. A later change to the statute was in 1978 after Proposition 7 passed. This gave an automatic appeal to the Supreme Court of California, which would directly affirm or reverse the sentence and conviction without going through an intermediate appeal to the California Courts of Appeal.

In 1983, The State Bar of California created The California Appellate Project as a legal resource center to implement the constitutional right to counsel for indigent persons facing execution. [15] At around the time of its founding, Michael Millman became the director of CAP. Millman served as director of CAP for 30 years. [16] CAP oversees the efforts to assist private lawyers representing the more than 700 people on California's death row. [16]

1986 retention elections Edit

On November 4, 1986, three members of the state supreme court were ousted from office by voters after a high-profile campaign that cited their categorical opposition to the death penalty. [17]

This included chief justice Rose Bird, who was removed by a margin of 67 to 33 percent. She reviewed a total of 64 capital cases appealed to the court, in each instance issuing a decision overturning the death penalty that had been imposed at trial. She was joined in her decision to overturn by at least three other members of the court in 61 of those cases. [18] This led Bird's critics to claim that she was substituting her own opinions and ideas for the laws and precedents upon which judicial decisions are supposed to be made. [19]

Resumption of executions and introduction of lethal injection Edit

On April 21, 1992 the state carried out its first execution since 1967 by putting to death Robert Alton Harris for the murders of two teenage boys in San Diego. A series of four stays of execution issued by the Ninth Circuit appeal court delayed the execution, causing the U.S. Supreme Court to intervene to vacate the stays and prohibit all other federal courts from any further intervention, ruling that the lower court decisions caused "abusive delays" and were "attempts to manipulate the judicial process". [20]

The available methods were expanded to two in January 1993, with lethal gas as the standard but with lethal injection offered as a choice for the inmate. [9] David Mason, the first inmate to have this choice, made no selection, so was executed by the lethal gas default in August 1993. Following a legal challenge and Ninth Circuit appeal court decision in 1996, lethal gas was suspended, with lethal injection becoming the only method. [9] [21] Serial killer William Bonin was the first person to be executed under these new laws, on February 23, 1996. Thirteen people have been executed in California since the death penalty was reinstated in 1977, though 152 other people have died on death row from other causes (30 of them from suicide) as of April 28, 2021. [22]

Lethal injection litigation Edit

During the term of Arnold Schwarzenegger as governor, the state carried out two prominent executions in less than five weeks, with Stanley Tookie Williams in December 2005 and Clarence Ray Allen in January 2006.

A month later, in February 2006, U.S. District Court Judge Jeremy D. Fogel blocked the execution of convicted murderer Michael Morales because of a lawsuit against the lethal injection protocol. [23] It was argued that if the three-drug lethal injection procedure were administered incorrectly, it could lead to suffering for the condemned, potentially constituting cruel and unusual punishment. The issue arose from an injunction made by the U.S. 9th Circuit Court of Appeals which held that an execution could only be carried out by a medical technician legally authorized to administer intravenous medications. The case led to a de facto moratorium of capital punishment in California as the state was unable to obtain the services of a licensed medical professional to carry out the execution. [24]

When the state planned the execution of Albert Greenwood Brown in late 2010, judge Fogel declined to stay it, citing all the efforts the state made to comply with his earlier ruling. But the 9th circuit appeal court disagreed with him and vacated the judgment, further delaying executions in the state. [25]

Studies Edit

The state supreme court proposed in 2007 that the state adopt a constitutional amendment allowing the assignment of capital appeals to the courts of appeal to alleviate the backlog of such cases. [26]

Several victims' families testified to the California Commission on the Fair Administration of Justice in opposition to capital punishment, explaining that whilst they had suffered great losses, they did not view retribution as morally acceptable, and that the high cost of capital punishment was preventing the solving of cold cases. [27]

But others who contest this argument said the greater cost of trials where the prosecution does seek the death penalty is offset by the savings from avoiding trial altogether in cases where the defendant pleads guilty to avoid the death penalty. [28]

The California Commission on the Fair Administration of Justice [29] in 2008 concluded after an extensive review that under the current death penalty system, death sentences are unlikely ever to be carried out (with extremely rare exceptions) because of a process “plagued with excessive delay” in the appointment of post-conviction counsel and a “severe backlog” in the California Supreme Court's review of death judgments. According to CCFAJ's report, the lapse of time from sentence of death to execution constitutes the longest delay of any death penalty state, and the Commission urged reform to expedite the appeal process.

Another study released in 2011 found that since 1978 capital punishment has cost California about $4 billion. A 2011 article by Arthur Alarcon, long-time judge of the Ninth Circuit Court of Appeal, and law professor Paula Mitchell, concluded that "since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions." [30]

Proposition 34, the SAFE California Act Edit

A coalition of death penalty opponents including law enforcement officials, murder victims' family members, and wrongly convicted people launched an initiative campaign for the "Savings, Accountability, and Full Enforcement for California Act," or SAFE California, in the 2011-2012 election cycle. [31] The measure, which became Proposition 34, would replace the death penalty with life imprisonment without the possibility of parole, require people sentenced to life in prison without the possibility of parole to work in order to pay restitution to victims' families, and allocate approximately $30 million per year for three years to police departments for the purpose of solving open murder and rape cases. [32] Supporters of the measure raised $6.5 million, dwarfing the $1 million raised by opponents of Proposition 34. [33]

The proposition was defeated with 52% against and 48% in favor. [34]

July 2014 and November 2015 federal decisions Edit

On July 16, 2014, federal judge Cormac J. Carney of the United States District Court ruled that California's death penalty system is unconstitutional because it is arbitrary and plagued with delay. The state has not executed a prisoner since 2006. The judge stated that the current system violates the Eighth Amendment's ban on cruel and unusual punishment by imposing a sentence that “no rational jury or legislature could ever impose: life in prison, with the remote possibility of death.”

However, on November 12, 2015, a panel of the U.S. Ninth Circuit Court of Appeals overturned the district court's ruling in a 3-0 published decision. The three judges held that the claim was not justiciable under federal habeas corpus. [35] [36]

2015 state lawsuit Edit

In February 2015, Sacramento County Superior Court Judge Shelleyanne Chang ruled that state law compelled the Department of Corrections and Rehabilitation to develop a way to execute inmates by lethal injection. [37] Later that year a new protocol providing a single-drug execution method was developed to comply with the ruling. [38]

This was the result of a lawsuit brought by family members of murder victims. Supporters of capital punishment blamed the nearly three-year wait for a new protocol on "lack of political will" [37] and attempt to render the death penalty "impractical and then argue for repeal on the grounds of practicality". [38]

Propositions 62 and 66 Edit

On November 8, 2016, California voted on two competing initiatives about capital punishment. Proposition 62 which, as Proposition 34, would have abolished the death penalty, was rejected by a 53-47 margin. The other initiative, Proposition 66, provides the streamlining of the capital appeal process, and also requires death-row offenders to work in jail and pay restitution to victims families, something they were previously exempted from. The measure passed 51–49. [8] Its constitutionality was upheld 5-2 by the state supreme court on August 24, 2017, though the court held that one provision requiring it to decide direct appeals of capital cases within five years was directive rather than mandatory. The court ordered that Prop 66 take effect after this decision becomes final. [39]

Legal process Edit

When the prosecution seeks the death penalty, the sentence is decided by the judge and the jury must be unanimous.

In case of a hung jury during the penalty phase of the trial, a retrial happens before another jury. If the second or any subsequent jury is also deadlocked, the judge has discretion to order another retrial or impose a life sentence. [40]

Under the state Constitution, the power of clemency belongs to the Governor of California. But if the offender was twice convicted of a felony, the governor can grant a commutation only on recommendation of the Supreme Court, with at least four judges concurring. [41]

Executions are carried out by lethal injection, but an inmate sentenced before its adoption may elect to be executed by gas inhalation instead. If one of these two methods is held invalid, the state is required to use the other method. [42]

Capital offenses Edit

California has one of the nation's broadest lists of capital crimes and capital circumstances. The Penal Code provides for the possibility for a sentence of death for:

Crimes against the person Edit

  • first-degree murder with special circumstances [43]
    • for financial gain (1)
    • the defendant had previously been convicted of first or second degree murder (2)
    • multiple murders (3)
    • committed using explosives (4) (6)
    • to avoid arrest or aiding in escaping custody (5)
    • the victim was an on-duty peace officer federal law enforcement officer or agent or firefighter (7) (8) (9)
    • the victim was a witness to a crime and the murder was committed to prevent them from testifying (10)
    • the victim was a prosecutor or assistant prosecutor judge or former judge elected or appointed official juror and the murder was in retaliation for the victim's official duties (11) (12) (13) (20)
    • the murder was "especially heinous, atrocious, or cruel, manifesting exceptional depravity" (14)
    • the murderer lay in wait for the victim (15)
    • the victim was intentionally killed because of their race, religion, nationality, or sexual orientation. (a hate crime) (16)
    • the murder was committed during the committing of a robbery kidnapping rape sodomy performance of a lewd or lascivious act upon the person of a child under the age of 14 years oral copulation burglary arson train wrecking mayhem rape by instrument carjacking torture poisoning (17)
    • the murder was intentional and involved the infliction of torture (18) (19)
    • the murder was committed by discharging a firearm from a motor vehicle (21)
    • the defendant is an active member of a criminal street gang and was to further the activities of the gang (22)

    Crimes against the state Edit

      against the state of California, defined as levying war against the state, adhering to its enemies, or giving them aid and comfort [47] or subornation of perjury causing execution of an innocent person [48]

    Additionally, the Military and Veterans Code provides for possible capital punishment in either of the following if such act or acts, or failure to act, results in a death:

    • intentionally and maliciously destroying, impairing, injuring, interfering, or tampering with real or personal property with reasonable grounds to believe that such act will hinder, delay, or interfere with the preparation of the United States or any of the states from preparing for war, or any foreign nation which assistance by the United States is in connection with that nation's defense or [49][50]
    • intentionally and maliciously making or causing to be made or intentionally and maliciously omitting to note on inspection any defect in any article or thing with reasonable grounds to believe that such article or thing is intended to be used in connection with the preparation of the United States or any state for defense or for war, or for the prosecution of war by the United States, or with the rendering of assistance by the United States to any other nation in connection with that nation’s defense, or that such article or thing is one of a number of similar articles or things, some of which are intended so to be used. [51][52]

    Criticisms Edit

    In 2008, the California Commission on the Fair Administration of Justice criticized the high number of aggravating factors as giving to local prosecutors too much discretion in picking cases where they believe capital punishment is warranted. The Commission proposed to reduce them to only five (multiple murders, torture murder, murder of a police officer, murder committed in jail, and murder related to another felony). [53] Columnist Charles Lane went further, and proposed that murder related to a felony other than rape should no longer be a capital crime when there is only one victim killed. [54]

    Men condemned to death in California must (with some exceptions) be held at San Quentin State Prison, while condemned women are held at Central California Women's Facility (CCWF) in Chowchilla. San Quentin also houses the state execution chamber. [55] Women executed in California would be transported to San Quentin before being put to death. [56]

    As of 2015 [update] , 708 male death row inmates were held at San Quentin. There were 23 male California death row inmates in medical facilities, other state prisons, and in correctional facilities in proximity to their court hearings. As of August 2017, there were 22 female death row inmates at CCWF. [57] [58]


    Contents

    Animal rights and welfare activist groups such as the Humane Society of the United States [1] and the Animal Legal Defense Fund [2] contend that foie gras production methods, and force feeding in particular, constitute cruel and inhumane treatment of animals. Specific complaints include livers swollen to many times their normal size, impaired liver function, expansion of the abdomen making it difficult for birds to walk, death if the force feeding is continued, and scarring of the esophagus.

    In modern gavage-based foie gras production, force feeding takes place 12–18 days before slaughter.

    In 2001, the Director of the New York State Government Affairs & Public Policy Dept. for the American Society for the Prevention of Cruelty to Animals, which is one of America's leading environmental activist groups, wrote a letter to then NYS Attorney General, Eliot Spitzer, asking that the state's foie gras producers be prosecuted for violating animal cruelty statutes. [3] [4] [5] [6]

    Late in 2003, the French group Stopgavage ("Citizens' Initiative for the banning of force-feeding") published the Proclamation for the Abolition of Force Feeding, which asks justices to find foie gras production practices a violation of existing animal welfare laws. [7] For this manifesto Stopgavage claims the support of over eighty French animal rights and welfare associations, over a hundred such associations from 25 other countries, and over 20 thousand individual signatories. [8]

    Stopgavage, through its president Antoine Comiti, has criticized the INRA (a French public research institute) for allowing its researchers to receive grants from the foie gras industry for conducting research aimed at contradicting the EU report conclusions. [9] Robert Dantzer, a retired INRA researcher, calls the INRA studies "pseudoscience" and "convenience research". [10]

    In 2005, the organisations APRL, IDA and PETA released a video narrated by Sir Roger Moore showing footage the groups took inside the three U.S. foie gras farms and several in France. [11]

    PETA wants this practice, which they say is cruel, [12] [13] stopped. Various American celebrities have lent their voices to this public campaign. Most recently in April 2009 PETA released a letter written by television and stage actor Bea Arthur to TV chef Curtis Stone deploring the practice of foie gras. [14]

    In 2014 Compassion in World Farming partners with other organizations such as the German Albert-Schweitzer Foundation [15] and the French organization L214 [16] to pressure the EU Commission and EU Agriculture Council to take action against the production of foie gras. [17]

    The report of the European Union's Scientific Committee on Animal Health and Animal Welfare on Welfare Aspects of the Production of Foie Gras in Ducks and Geese, adopted on December 16, 1998, is an 89-page review of studies from several producing countries. It examines several indicators of animal welfare, including physiological indicators, liver pathology, and mortality rate. It strongly concludes that "force feeding, as currently practised, is detrimental to the welfare of the birds."

    Members of the committee describe how geese and ducks show "avoidance behaviour indicating aversion for the person who feeds them and the feeding procedure". Although the committee reported that there is no "conclusive" scientific evidence on the aversive nature of force feeding, and that evidence of injury is "small", in their overall recommendations, the committee stated that "the management and housing of the birds used for producing foie gras have a negative impact on their welfare". [18] [19]

    On physiology, the report finds that based on studies available, "no definite conclusions can be drawn concerning the physiological activity of birds in response to force feeding" because although "force feeding induced hepatic steatosis in the duck or goose", "hepatic steatosis in the waterfowl is a normal metabolic response" and there was a low incidence of lesions. If gavage is stopped the "return to normal took approximately four weeks". As an economic indicator the report states "it is strongly in the interest of the farmer" to avoid disease as the "resulting fat liver is of no commercial value". It summarizes that "some pathologists consider this level of steatosis to be pathological but others do not" and recommends that research "should be carried out into methods of producing fat liver which do not require the use of force feeding".

    The EU report notes that continued force feeding leads to early death of the animal, and the birds are typically slaughtered just at the point that mortality would drastically increase from the force feeding. In the studies it examined, "the mortality rate in force fed birds varies from 2% to 4% in the two week force feeding period compared with around 0.2% in comparable ducks".

    On the force feeding process, the EU committee examined several experiments carried out by INRA (Institut National de la Recherche Agronomique) to detect pain or distress by looking at blood hormones, and found that no definite conclusions can be drawn from these studies. Other studies looked at behavioral aversion to the feeding process and found that force fed ducks avoided the feeding pen when given a choice, whereas a majority of the control group not being force fed would enter the feeding pen voluntarily. Daily hand-feeding of ducks and geese is normally associated with a positive response by the animals towards the person feeding them. In contrast, the working group observed that ducks and geese in a pen kept away from their force feeder when he entered the room. In an unpublished pilot experiment by INRA, ducks in cages reportedly displayed less avoidance behaviour to the force feeder's visit than to the visit of a neutral person coming along the cages later. However, in the working group's own observations, "Ducks in cages had little opportunity to show avoidance but sometimes moved their heads away from the person who was about to force feed them."

    The report also recommends collection of additional data regarding the health of the animals, feeding methods, animal housing, and socio-economic factors.

    In 2004 and 2005, the American Veterinary Medical Association House of Delegates, the US accrediting body of veterinary medicine, was forwarded resolutions from its Animal Welfare Committee to oppose the production methods for foie gras. After hearing testimony from 13 delegates, the HOD declined to take a position and left a simple statement: "Limited peer-reviewed, scientific information is available dealing with the animal welfare concerns associated with foie gras production, but the observations and practical experience shared by HOD members indicate a minimum of adverse effects on the birds involved."

    The HOD sent delegates to visit foie gras farms. One delegate, Robert P Gordon of New Jersey, indicated his personal position changed drastically after the visit. He also testified tube feeding is less distressing than taking the rectal temperature of a cat and urged the AVMA to take a position based on science, not emotion, while cautioning against anthropomorphism. The New York delegation offered their opinion that opponents of foie gras were intending to create a wedge issue that the arguments used against foie gras would be modified to be used against other livestock production. The testimony of the delegate from the Association of Avian Veterinarians was that medicating and feeding sick birds via tube was a normal practice that birds accepted without stress. Another delegate who toured the farms stated that the birds appeared to be well cared for and better off than other poultry raised in factory farming. The overall position of the House of Delegates was that "observations and practical experience shared by HOD members indicate a minimum of adverse effects on the birds involved." [20] The closing comments in the HOD were that the AVMA should be taking positions on facts and science, make broad policy positions on general animal welfare, and support positions that created oversight of controversial practices for fear that prohibition would cause production to move to countries without animal welfare regulation. [20]

    Critics of the AVMA have stated that the organization tends to defend the economic interests of agribusiness over animal welfare, and that it has also declined to take a position against other controversial practices such as forced molting and gestation crates. [21] [22]

    In June 2005, New York Times editor Lawrence Downes was invited to a visit [23] of the same farm, including specifically the gavage process, [24] and he "saw no pain or panic. The birds submitted matter-of-factly to a 15-inch tube inserted down the throat for about three seconds, delivering about a cup of corn pellets. The practice. seemed neither particularly gentle nor particularly rough." [24]

    Dr. Ward Stone, wildlife pathologist with the NYSDEC and Adjunct Professor at SUNY has on several occasions conducted post-mortems on ducks that died from force feeding, including from the same farm a few months after Mr. Downes' visit. [25] In September 2005, he writes: "the short tortured lives of ducks raised for foie gras is well outside the norm of farm practice. Having seen the pathology that occurs from foie gras production, I strongly recommend that this practice be outlawed." [26]

    In 2005, the delegates from New Jersey and Vermont of the American Veterinary Medical Association gave testimony to the organization after touring tube-feeding farms. Dr. Robert Gordon had visited a farm in New York on July 5. He noted, "After being on the premises, my position changed dramatically. I did not see animals I would consider distressed, and I didn't see pain and suffering." As written at AVMA news, Dr. Thomas Munschauer visited a New York farm at the request of "both sides." "I didn't see exploding esophaguses . and it didn't seem like the birds were distressed. For the most part, they appear to be well-cared-for. That's what I saw." [27]

    In January 2009, The National Advertising Division (NAD) of the Council of Better Business Bureau recommended that New Jersey-based foie gras producer D'Artagnan cease advertising claims that their product is made from "enlarged" rather than "diseased" livers, and that the animals were "hand-raised with tender care". D'Artagnan voluntarily modified their advertising to remove the claims which the agency said had not been "adequately substantiated." [28]

    Most foie gras producers do not consider their methods cruel, insisting that it is a natural process exploiting the animals' natural features. Producers argue that wild ducks and geese naturally ingest large amounts of whole food and gain weight before migration. They claim that geese and ducks do not have a gag reflex in their throats the same way that humans do, and therefore do not appear to find force feeding uncomfortable. [29] Michael Ginor, owner of Hudson Valley Foie Gras, author of Foie Gras. A Passion, claims his birds come to him to be fed and says this is important because "a stressed or hurt bird won't eat and digest well or produce a foie gras."

    Mirepoix USA, a top provider of goose and duck foie gras, alleges that the animal rights activists attack is a form of prohibition against a cuisine item. Mirepoix claims that the use of the term "diseased" to refer to fatted liver is inaccurate and that geese and ducks naturally store dead fish in their esophagi for long periods. [30] The ducks used in foie gras production, however, are a hybrid of Pekin (a type of Mallard) and Muscovy ducks, both of which are dabbling ducks and as such, subsist mainly on a diet of underwater vegetation, larvae, and various insects.

    Chef Anthony Bourdain and chef/writer Michael Ruhlman have both supported foie gras production from humanely treated, properly raised ducks, and stated that the footage seen in the videos of critics is cruel but that no reputable chef would buy such product. [31] However other celebrity chefs such as Wolfgang Puck, and Albert Roux are against the use of foie gras. [32] Roux has argued that foie gras should come with a warning so that "people know what's being done to the animals." He states that "More humane methods should be used that allow the animal to gorge themselves naturally." [33] Chicago chef Charlie Trotter maintained that the production of foie gras is "too cruel to be served." [34] However, Trotter refused to be associated with animal rights groups stating "These people are idiots. Understand my position: I have nothing to do with a group like that. I think they're pathetic." [35]

    The controversy over foie gras has been the subject of several lawsuits. The 1985 case Lovenheim v. Iroquois Brands was a shareholder suit regarding ethical concerns about a company selling foie gras. [36]

    In 2003, the Animal Protection and Rescue League and In Defense of Animals filed suit against Sonoma Foie Gras in California under the state's unfair business practices law, alleging animal cruelty. The farm also sued the two groups and four activists who documented conditions at the farm for trespass. [37] The Legislature then intervened with a law allowing the farm to continue force feeding until the year 2012, after which point both the sale and production of foie gras has been illegal in California. [38]

    In 2006, Sonoma Foie Gras sued Whole Foods Market for intentional interference with contract for influencing Grimaud Farms to stop supplying ducklings and marketing for Sonoma. [39] The suit was settled for an undisclosed amount, though the jury returned a judgement of $5.2 million. [40]

    Also pending is a 2006 lawsuit filed by the Humane Society of the United States against the New York Department of Agriculture and Markets, alleging that foie gras qualifies as an adulterated food that should not be sold. [41]

    In 2011, the Animal Legal Defense Fund filed a legal petition with the U.S. Department of Agriculture (USDA), urging that foie gras bear a consumer warning label stating "NOTICE: Foie gras products are derived from diseased birds." ALDF argues that because the USDA is responsible for ensuring that poultry products are wholesome and for approving only products from healthy animals, stamping foie gras products with the USDA seal without disclosing that those products are derived from diseased birds misleads consumers, contravening the Poultry Products Inspection Act. [2] Regularly eating foie gras can harm the health of predisposed people. Patients with Alzheimer's, rheumatoid arthritis, type 2 diabetes and other amyloid-related diseases should not eat it. [42]

    In 2012, the Animal Legal Defense Fund sued Hudson Valley Foie Gras over its advertising as "the humane choice" for foie gras. Hudson Valley settled the case and dropped this advertising campaign after a federal judge in California indicated that he would allow the parties to present evidence and decide whether Hudson Valley could prove that its "humane" claims were truthful. [43]

    In February 2013, the Animal Legal Defense Fund filed an appeal in a lawsuit against the New York Department of Agriculture and Markets for allowing the ongoing sale of foie gras. The original lawsuit, which was dismissed in February for lack of standing, alleges that the Department violates its own Agriculture and Markets Law by allowing the sale of foie gras. New York's state law requires the Department to declare "the product of a diseased animal" an adulterated product. In the appeal, the Animal Legal Defense Fund will defend its legal standing to bring the case, noting it has diverted substantial resources to warn the public of the dangerous health risks posed by foie gras and, will assert that the Department's failure to regulate has resulted in the slaughter of hundreds of thousands of diseased birds whose organs are distributed into the human food supply. [44]


    A year after ban's repeal, foie gras remains hot topic

    2 of 44 FILE - In this Dec. 9, 2003 file photo, Jorge Vargas uses a funneled pipe to force-feed a measured dose of corn mush to a Moulard duck in its pen at Sonoma Foie Gras in Farmington, Calif. Foie gras, the silky soft delicacy derived from the livers of force-fed geese and ducks, is stoking a battle of epicurean ethics in Northern California. Foie gras lovers are rejoicing after a federal judge in Los Angeles blocked California?’s ban on the sale of the fatty duck and goose liver. Judge Stephen V. Wilson on Wednesday, Jan. 7, 2015 permanently blocked the state attorney general from enforcing the law, which took effect two years ago.
    Eric Risberg / Associated Press Show More Show Less

    4 of 44 Buy Photo A chef prepares Foie Gras Torchon with jerk spices an guava jelly during Dirty Habit's "Celebration of Foie Gras" in San Francisco, Calif. on Wednesday, January 7, 2015. Scott Strazzante / Scott Strazzante / The Chronicle Show More Show Less

    5 of 44 The foie gras and duck rillette with a truffled quail egg at Biga on the Banks. Express-News file photo Show More Show Less

    7 of 44 Kata Robata's Hawaiian Amber Jack sashimi with seared foie gras and crushed hazelnuts. ( Nick de la Torre ) Nick de la Torre Show More Show Less

    8 of 44 Past foie gras dishes in the Bay Area. Fifth Floor: Foie gras a la PETA (pear, endive, toast, apple) Show More Show Less

    10 of 44 Michael Mina: Foie gras and dayboat scallpos. (SFC) Show More Show Less

    11 of 44 Zare at Fly Trap: "Menage a foie" Show More Show Less

    13 of 44 Chez Papa Resto: Foie Gras Duo, Foie Gras Torchon Show More Show Less

    14 of 44 Spruce: Foie Gras, Vadouvan Waffles, Pear Jelly, Pistachio Show More Show Less

    16 of 44 Bank Bar, Napa: The duck burger with foie gras. (SFC) Show More Show Less

    17 of 44 Masa's: Hot foie gras with pickled rhubarb, fennel, anise gastrique. Show More Show Less

    19 of 44 Txoko: Foie Gras a la Plancha, Beluga Lentils, Mirepoix, Chorizo, Duck Jamon, 4505 Chicharrones Show More Show Less

    20 of 44 Lucy at Bardessono, Yountville: Foie gras appetizer with roasted pear puree brioche charlotte and huckleberry Show More Show Less

    22 of 44 Former Chez TJ chef Scott Nishiyama's frozen foie gras dish. (via @antoinette_b) Show More Show Less

    23 of 44 Naked Lunch: Foie gras and duck proscuitto sandwich. Show More Show Less

    25 of 44 Chez Papa Resto: Foie Gras Duo, Pan Seared with Cranberry Sauce Show More Show Less

    26 of 44 Kabuto: Foie gras sushi Show More Show Less

    28 of 44 The French Laundry: Foie gras glazed in Guinness chocolate with walnuts and onions (via @Chef_Timothy) Show More Show Less

    29 of 44 Zare at Fly Trap: Foie gras, smoked salmon, lentils, balsamic. Show More Show Less

    31 of 44 Morimoto, Napa: "Duck-duck-goose", including frozen foie gras (SFC) Show More Show Less

    32 of 44 Lucy at Bardessono, Yountville: Foie gras and tuna, served with forbidden rice, garden tatsoi and kohlrabi, Cabernet foie gras sauce. Show More Show Less

    34 of 44 George Morrone at Michael Mina's anniversary dinner: Foie Gras & Grilled Ahi Tuna, with potato shallot cake, Bloomsberg spinach and portobello Pinot Noir reduction (SFC) Show More Show Less

    35 of 44 Bottega, Yountville: Lobster mascarpone filled crepe raviolo with foie gras sauce, tarragon oil micro cress. (via @ChefChiarello) Show More Show Less

    37 of 44 Isa: Seared foie gras Show More Show Less

    38 of 44 Per Se, New York: Foie gras mille crepe (via @Chef_Timothy) Show More Show Less

    40 of 44 Au Pied de Cochon, Montreal: Foie gras poutine. Show More Show Less

    41 of 44 Umami: Foie gras nigiri Show More Show Less

    43 of 44 Parallel 37: Ron Siegel's foie gras appetizer served with huckleberries and apples. Show More Show Less

    On Wednesday, many Bay Area restaurants will celebrate the first anniversary of the return of foie gras to California menus, following a 2015 repeal of the high-profile state ban on the duck liver delicacy. Some, like Cockscomb in SoMa, will feature regularly offered dishes, like a chicken and foie gras terrine with a pickled quail egg others, like La Toque in Napa, will offer free foie gras bites to diners.

    But a year after the ban was lifted, the issue still isn&rsquot fully resolved, with two significant lawsuits still pending in state court &mdash including one that could reinstate the ban.

    The original state law (SB1520), which was passed in 2004 and implemented in 2012, banned both the sale and production of foie gras.

    On Jan. 7, 2015, U.S. District Judge Stephen Wilson in Los Angeles ruled that the law interfered with the federal Poultry Products Inspections Act, which regulates the sale and distribution of birds and does not allow states to impose individual conditions on food. Foie gras immediately appeared on local restaurants&rsquo menus.

    Attorney General Kamala Harris followed up a month later with an appeal to Wilson&rsquos ruling. That appeal remains ongoing, according to the attorney general&rsquos office, with the most recent brief filed last month, urging that the district court&rsquos judgment be reversed.

    Separately, a lawsuit against chef Ken Frank of La Toque restaurant in Napa is also pending. Animal rights activists sued Frank for openly serving foie gras, for free, during the ban.

    Activists argue that the process of making foie gras is inhumane because it requires force-feeding ducks or geese until their livers are enlarged, often causing injury. (The delicacy is usually duck liver in the U.S., while goose liver is more popular in France.) Because of the California law, foie gras still cannot be produced in California, though its sale is no longer illegal.

    Chefs counter that there are humane ways to produce foie gras and that the ingredient plays a unique and special role on menus.


    Tuesday, October 4, 2011

    Restore the U.S. Horse Industry

    6,808 letters and emails have now been sent from the Petition2Congress site requesting Congress to restore the U.S. horse industry.

    As U.S. horse industry members, supporters, and concerned citizens we call on Congress to take proactive measures to stop the needless suffering of horses and people by 1) removing the annual riders from the Ag Appropriations bill that prevent USDA inspection on a voluntary fee basis (the processor pays for the inspection) which does not cost the taxpayer a dime, allows for the overnight creation of hundreds of private sector jobs, and allows the entire horse industry to begin to regain economic value, viability and vitality and 2) oppose any and all measures that use the heavy hand of federal intervention such as S. 1176 and H.R. 2296 that do absolutely nothing to improve the welfare of horses, and only result in increased suffering.

    Equine Scientists Debunk Horsemeat Health Risk Claims

    Contacts:
    Dave Duquette, [email protected] 541 751 7588
    Sue Wallis, [email protected] 307 685 8248 (ranch) 307 80 8515 (cell)

    Health Risk of Horse Meat is Unsubstantiated

    Four prominent equine scientists, Dr. Don Henneke, Phd, Dr. Sheryl King, Phd, PAS, Dr. William Day, Phd and Dr. Patricia Evans, EdD, have written a strongly worded letter to the Journal of Food and Chemical Toxicology in regards to a February 2010 paper, "Association of phenylbutzone usage in horses bought for slaughter: a public health risk" by Nicholas Dodman, Nicolas Blondeau, and Ann M. Marini, pointing out the unscientific, politically motivated erroneous conclusions of the paper. The letter points out the fallacy of "mixing sound research conducted on humans with unrelated sound research from horses." The clear message of the four equine scientists is that the journal paper's authors "attempt to formulate an unfounded and unsubstantiated conclusion that horsemeat derived from American horses contains residues of phenylbutazone that are harmful to humans. This conclusion is not supported by the research cited or any other research. "

    The paper's authors as well as the so-called experts credited with contribution to the article are all linked to extremist animal rights organizations that have been attacking America's farmers and ranchers. The Humane Society of the United States (HSUS), People for the Ethical Treatment of Animals (PETA) and their animal rights activist cronies continue to try to discredit the animal agriculture industry's commonsense, factual reasoning for the need for humane horse processing in the United States.

    "We are heartened that scientists have stepped up to challenge this flagrant attack on the hard working, tax paying horse people of America," says Wyoming state representative, Sue Wallis, one of the leaders of a nationwide grassroots horse industry organization, United Horsemen. "The journal article is penned by scientists and uncredentialed lay people known primarily for their radical animal rights political views."

    "Facts are stubborn things" wrote founding father John Adams, "and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence."

    "Thanks to dedicated scientists insisting on strict adherence to the scientific method," says Dave Duquette, working cow horse trainer and president of United Horsemen, "we have the facts, science, and evidence to disprove this blatant attempt to fool Congress and betray America's farmers and ranchers."

    The equine scientists conclude their letter by stating that,

    "As equine science Instructors, we strive to present factual information to our students in an unbiased manner. The topic of horse slaughter is controversial and emotional. No horse owner looks forward to making end of life decisions concerning their animals. Humane euthanasia, whether it is done at the veterinarian's facility, the owner's facility, or the slaughter facility, is not an easy decision to make. We believe that the decision should be left up to the individual horse owner. In the current economic climate, the availability of humane euthanasia must remain a viable option for the health of the horse industry. The publication of this obviously biased article by such a reputable source raises real concerns about the value of the peer review process. We trust that future acceptance of articles by Food and Chemical Toxicology concerning the horse will be properly reviewed prior to acceptance and publication."

    The letter authors also issued a detailed advisory to Congress regarding the unsubstantiated claims in the journal article, and the evidence for the safety of horsemeat produced from U.S. horses.


    THE “CALIFORNIA EFFECT” & THE FUTURE OF AMERICAN FOOD: HOW CALIFORNIA’S GROWING CRACKDOWN ON FOOD & AGRICULTURE HARMS THE STATE & THE NATION

    Baylen J. Linnekin [tippy title=”*” header=”off”]LL.M. candidate, Agricultural & Food Law, University of Arkansas. J.D., American University Washington College of Law M.A., Northwestern University B.A., American University. I thank my partner Roxanne Alvarez for her love and support Prof. Lewis Grossman for his stellar suggestions and guidance prior to and during the writing process Jerry Brito and Nick Gillespie, respectively, for encouraging my writing over the years and my former colleagues at the Administrative Law Review.[/tippy]

    Copyright (c) 2010 Chapman Law Review Baylen J. Linnekin

    Thank you for your wine, California. Thank you for your sweet and bitter fruits.

    — The Rolling Stones, Sweet Virginia, on Exile on Main Street (Atlantic Records 1972).

    For several decades, California has been the epicenter of the American food scene. While data show that the state produces one-third of the nation’s food supply, [tippy title=𔄣″ header=”off”]See U.S.D.A., National Agricultural Statistics Service, California Field Office, California Agricultural Statistics: 2007 Crop Year 1 (Oct. 2008), available at http://www.nass.usda.gov/Statistics_by_State/California/Publications/California_Ag_Statistics/Reports/2007cas-all.pdf [hereinafter U.S.D.A., California Agricultural Statistics: 2007 Crop Year].[/tippy] California is much more than where the food we eat comes from. One in eight American diners lives in the state, [tippy title=𔄤″ header=”off”]See U.S. Census Bureau, Geographic Comparison Table, 2007 Population Estimates, http://factfinder.census.gov/servlet/GCTTable?_bm=y&-geo_id=01000US&-_box_head_nbr=GCT-T1-R&-ds_name=PEP_2007_EST&-redoLog=false&-mt_name=PEP_2005_EST_GCTT1R_US9S&-format=US-9S (last visited Apr. 1, 2010) [hereinafter U.S. Census Bureau, 2007 Population Estimates].[/tippy] which is home to more than 90,000 restaurants. [tippy title=𔄥″ header=”off”]California Restaurant Association, About the CRA, http://www.calrest.org/ (last visited Apr. 1, 2010).[/tippy] California is also where eating trends are born, and where fast food, Chez Panisse, Mexican salsa, Wolfgang Puck, organic foods, street food, and Napa Valley wines became durable icons of American culinary culture.

    The state’s place atop the national food chain, though, is in jeopardy. In recent years, California legislators have pursued regulations that negatively impact many important agricultural and culinary trends. State and local governments have banned or severely hampered a veritable smorgasbord of foods, including everything from eggs to French fries, foie gras to tacos, raw-milk cheeses to bacon-wrapped hot dogs. [tippy title=𔄦″ header=”off”]See infra notes 55, 63, 90. Daniel Hernandez, The Bacon-Wrapped Hot Dog: So Good It’s Illegal, LA Weekly, Feb. 7, 2008, http://www.laweekly.com/2008-02-07/eat-drink/the-hot-dog-so-good-it-sillegal/.[/tippy] Meanwhile, California Proposition 65 requires proprietors of restaurants that serve olives, bread, and chicken to warn customers that they sell cancerous products. [tippy title=𔄧″ header=”off”]Office of Environmental Health Hazard Assessment, Proposition 65 in Plain Language, http://oehha.ca.gov/prop65/background/p65plain.html (last visited Apr. 1, 2010).[/tippy] The nation’s breadbasket now wants us to fear bread.

    California’s turn against food is worrisome across the country, too, since in addition to its place as the nation’s breadbasket and culinary trendsetter, California is the country’s cultural and regulatory bellwether. Regulations passed in California often become laws elsewhere, at both the state and federal level. [tippy title=𔄨″ header=”off”]See infra Part III.C.[/tippy] Companies that can no longer market a food in California may be forced to decide whether that product–robbed of twelve percent of its potential market–is still viable.

    This article explores the bright past, gloomy present, and cloudy future of food in California, and what this means for food in America. Section I describes the nature and history of California’s agricultural and culinary development. Section II explores several of California’s state and local food bans and restrictive food regulations. Section III analyzes the “California effect” and the nationwide impact of California’s food crackdown, and describes several ways that burdensome California food laws have impacted agriculture or dining on a national scale. Section IV analyzes the likely causes of the state’s burgeoning crackdown on food, and explores several arguments over California’s food crackdown. Finally, this article concludes that what California and America need in place of what some critics label “food fascism” [tippy title=𔄩″ header=”off”]See, e.g., Peter Ferrara, Op-Ed, Rise of Food Fascism, Wash. Times, June 1, 2003, at B3 (“[F]ood fascism is a direct assault on our freedom of choice over our own diets.”).[/tippy] is food freedom: the right of people to grow, buy, sell, cook, and eat the foods they want.

    I. California: The Capital of Modern American Food

    California is the nation’s third-largest state in terms of area, [tippy title=𔄪″ header=”off”]See U.S. Census Bureau, United States Summary 2000, 2000 Census of Population and Housing 29 (2004).[/tippy] and it is the largest, by more than one-third, in terms of population. [tippy title=𔄫″ header=”off”]See U.S. Census Bureau, 2007 Population Estimates, supra note 2.[/tippy] More than twelve percent of Americans call California home. [tippy title=󈭞″ header=”off”]See id.[/tippy] Just as important for the purposes of this article, California is the birthplace of much of what we eat, and how and why we prepare a rich variety of foods.

    A. California: America’s Agricultural Titan

    Indigenous Americans who made their home in pre-colonial times in what is now California subsisted on a variety of wild foods, including acorns, game, and marine mammals. [tippy title=󈭟″ header=”off”]See Andrew F. Smith, California, in 1 The Oxford Encyclopedia of Food and Drink in America 165 (Andrew F. Smith ed., 2004).[/tippy] Many crops and animals now raised in the state were brought by the Spaniards and Mexicans who first colonized today’s California in the latter half of the eighteenth century. [tippy title=󈭠″ header=”off”]See id. at 166.[/tippy]

    California currently boasts more than 75,000 farms and ranches. [tippy title=󈭡″ header=”off”]California Department of Food and Agriculture, California Agricultural Resource Directory 2007 19 (2008) [hereinafter California Department of Food and Agriculture].[/tippy] These occupy more than 26 million acres, or 25 percent of the state’s total acreage. [tippy title=󈭢″ header=”off”]Id.[/tippy] These farms generate more than $36 billion in sales, which is nearly double that of Texas, California’s closest competitor. [tippy title=󈭣″ header=”off”]See U.S.D.A., California Agricultural Statistics: 2007 Crop Year, supra note 1, at 1.[/tippy] California’s agricultural output is so massive that its value dwarfs that of all but about a half-dozen countries in the world. [tippy title=󈭤″ header=”off”]See University of California-Davis, Agricultural Issues Center, The Measure of California Agriculture, 5-1 (2009), available at http://aic.ucdavis.edu/publications/moca/moca09/moca09.pdf.[/tippy]

    California’s vast size, fertile soil, and largely temperate climate make the state an ideal location for growing a dizzying array of crops and raising livestock. Nationally, recent data show that the top five agricultural counties in America, in terms of sales, are located in California. [tippy title=󈭥″ header=”off”]U.S.D.A., Data Sets, State Fact Sheets (2009), http://www.ers.usda.gov/StateFacts/US.htm (last visited Apr. 1, 2010).[/tippy] Agriculture and crop production rank first and fourth, respectively, on the state’s own list of “competitive edge” private industries. [tippy title=󈭦″ header=”off”]See California Economic Development Partnership, California Facts Statewide (Nov. 2006), available at http://www.labor.ca.gov/cedp/pdf/CaliforniaFacts.pdf.[/tippy] Owing to California’s place as a wine- and beer-producing state, beverage manufacturing ranks tenth on the list. [tippy title=󈭧″ header=”off”]Id.[/tippy]

    The sheer volume and variety of crops grown in California defy overstatement. The state leads the nation in production of almonds and walnuts and seemingly every crop alphabetically in between. [tippy title=󈭨″ header=”off”]See U.S.D.A., California Agricultural Statistics: 2007 Crop Year, supra note 1, at 1.[/tippy] In addition to almonds and walnuts, California is America’s sole producer–meaning it is home to ninety-nine percent or more of the country’s overall production–of figs, raisins, olives, clingstone peaches, persimmons, prunes, pomegranates, sweet rice, and clover seed. [tippy title=󈭩″ header=”off”]Id.[/tippy] The state leads the nation in production of asparagus, avocados, bell peppers, broccoli, carrots, cauliflower, celery, cut flowers, dates, eggplant, garlic, grapes, herbs, kiwi, lemon, lettuce, lima beans, melons, nectarines, onions, pears, pistachios, plums, raspberries, strawberries, turnips, and more than a dozen other crops. [tippy title=󈭪″ header=”off”]Id.[/tippy] All told, California farms account for nearly half of America’s domestic production of fruits, nuts, and vegetables. [tippy title=󈭫″ header=”off”]Id.[/tippy] California growers ship the vast majority of these crops to other U.S. states. [tippy title=󈭬″ header=”off”]Id. at 3.[/tippy] California also accounts for all of America’s nut exports, and three out of five fruit and vegetable exports. [tippy title=󈭭″ header=”off”]Hyunok Lee, California Horticulture: Current Trade and Policy Issues, 6 Agric. & Resource Econ. Update 3, 3 (2002), available at http://www.agecon.ucdavis.edu/extension/update/articles/v6n22.pdf.[/tippy]

    California is also the nation’s organics and dairy capital. Today, California leads the nation by a wide margin in both the number of certified organic farms and ranches with 1,916 (Wisconsin, in second place, has just 580 such operations) and organic crop acres with 223,263 (North Dakota, with 143,322, is second). [tippy title=󈭮″ header=”off”]See U.S.D.A., Data Sets, Organic Production (2008), available at http://www.ers.usda.gov/Data/Organic.[/tippy] California, also America’s leading dairy maker, [tippy title=󈭯″ header=”off”]U.S.D.A., California Agricultural Statistics: 2007 Crop Year, supra note 1, at 65.[/tippy] accounts for twenty-two percent of America’s milk production, [tippy title=󈭰″ header=”off”]Id. at 1.[/tippy] about half of which is used to make cheese. [tippy title=󈭱″ header=”off”]Id. at 65.[/tippy] The state produces more milk than do its two closest competitors, Wisconsin and New York, combined. [tippy title=󈭲″ header=”off”]See California Department of Food and Agriculture, supra note 13, at 96.[/tippy]

    B. California: America’s Culinary Titan

    While California is undoubtedly America’s agricultural giant, the state may be even better known for its place as the epicenter of modern-day American cuisine. In so many different ways, what we eat today reflects California’s past and present culinary development.

    The story of food in California, like that of most states and nations, mirrors immigration patterns. After Mexico won its independence from Spain a half-century after colonization, Mexican cuisine predominated in the state. [tippy title=󈭳″ header=”off”]See Smith, supra note 11, at 165-67.[/tippy] The Mexican-American War, and, soon after, the state’s Gold Rush, brought an influx of Americans to the state, along with large numbers of immigrants from Europe, Asia, Australia, and the Pacific islands. [tippy title=󈭴″ header=”off”]Id. at 166.[/tippy] Each group brought its own culinary traditions, immediately diversifying California’s cuisine. [tippy title=󈭵″ header=”off”]Id.[/tippy]

    California’s population doubled from 1920 to 1940. [tippy title=󈭶″ header=”off”]U.S. Census Bureau, Resident Population and Apportionment of the U.S. House of Representatives, California (2000), available at http://www.census.gov/dmd/www/resapport/states/california.pdf.[/tippy] With the advent of the automobile and freeway travel burgeoning, more Californians had the means to travel in search of different cuisines. Restaurateurs, like Oakland entrepreneur Victor Bergeron, met the demand head on. [tippy title=󈭷″ header=”off”]See Smith, supra note 11, at 171.[/tippy] Bergeron began a quest in the 1930s to bring California’s ethnic cuisines to the masses, setting the stage with his Mexican and Polynesian restaurants for today’s family-style Mexican and Szechuan dining experiences. [tippy title=󈭸″ header=”off”]Id.[/tippy]

    That same decade, California also gave birth to the hamburger chains that became America’s fast food icons–perhaps the state’s first and most lasting contribution to America’s national cuisine. In rapid succession, Bob’s Big Boy, In-N-Out Burger, McDonald’s, and Jack in the Box sprung up in California as small operations, each expanding quickly from local to state to regional or national operation. [tippy title=󈭹″ header=”off”]Id.[/tippy] The first twenty-four hour restaurant chain, Denny’s, literally opened its doors (which have no locks) in Lakewood, California in 1953. [tippy title=󈭺″ header=”off”]See Denny’s Restaurants, Denny’s Restaurants History, http://dennys.com/en/page.aspx?ID=31&title=History (last visited Feb. 1, 2010).[/tippy]

    The first major post-WWII development in California’s culinary experience was the state’s place as a launching pad for an American revolution in French cooking. In the 1940s, California native Julia Child moved to Paris, where she studied culinary arts under various French masters. [tippy title=󈭻″ header=”off”]See Smith, supra note 11, at 171.[/tippy] Soon after her return to the United States more than a decade later, Child published Mastering the Art of French Cooking, the first cookbook to make French recipes and methods accessible to the masses. [tippy title=󈭼″ header=”off”]Id.[/tippy]

    In 1971, a decade after Child began to reshape the American culinary landscape for home cooks, Berkeley, California chef Alice Waters, who also trained in France, launched Chez Panisse, the restaurant that gave birth to “California cuisine.” [tippy title=󈭽″ header=”off”]Id. at 171-72.[/tippy] The restaurant was the first in the nation explicitly to serve food from a set menu featuring only fresh, seasonal, and local ingredients. [tippy title=󈭾″ header=”off”]See, e.g., Chez Panisse Restaurant, Alice Waters: Executive Chef, Founder and Owner, http://www.chezpanisse.com/about/alice-waters/ (last visited Aug. 12, 2009).[/tippy] Waters was also “the first to put [the word] ‘organic’ on the menu.” [tippy title=󈭿″ header=”off”]Julie Guthman, Agrarian Dreams: The Paradox of Organic Farming in California 15 (2004).[/tippy] Waters and her chefs combined this approach with the variety of cuisines that had been popular in California since the end of the Nineteenth Century to create something truly original, truly Californian. [tippy title=󈮀″ header=”off”]See generally Jeremiah Tower, California Dish: What I Saw (and Cooked) at the American Culinary Revolution (2006).[/tippy] In so doing, she not only gave birth to California cuisine but to the “new American” food movement. [tippy title=󈮁″ header=”off”]Id. at 219.[/tippy] This movement, which stresses the Waters ideal of fresh, local, seasonal, and organic cuisine, spread across the country in the 1970s, 1980s, and 1990s due to the influence of Waters, Austrian California transplant Wolfgang Puck, and a host of other groundbreaking chefs. [tippy title=󈮂″ header=”off”]See id. at 212, 219.[/tippy]

    Wine, for many the perfect complement to a great meal, is also at the center of California’s culinary growth. Wine has been produced in the state since the time Spanish missionaries arrived in California. [tippy title=󈮃″ header=”off”]See Smith, supra note 11, at 170.[/tippy] Still, at the dawn of the twentieth century, even food writers were unaware that California produced nearly every wine varietal. [tippy title=󈮄″ header=”off”]See R.S., Foreign Correspondence, Food at the Exposition, N.Y. Times, Aug. 12, 1900 (noting with surprise that California “apparently produces every kind of wine”).[/tippy] For more than 100 years, consumers and connoisseurs had considered the state’s wines–indeed all American wines–to be second-rate compared to those of the major European producing countries. That changed in 1976 with the “Judgment of Paris,” a competition pitting top French and California wines against one another in a double-blind expert tasting. [tippy title=󈮅″ header=”off”]See generally George M. Taber, California vs. France and the Historic 1976 Paris Tasting That Revolutionized Wine (2003).[/tippy] California wines crushed their French counterparts, opening the domestic and world markets to California vintners. [tippy title=󈮆″ header=”off”]See id.[/tippy]

    Today, California produces about ninety percent of all U.S. wine [tippy title=󈮇″ header=”off”]Press Release, Wine Institute, California Travel & Tourism Commission and Wine Institute Form Historic Partnership to Promote Culinary Travel (Aug. 21, 2007), available at http://www.wineinstitute.org/resources/pressroom/08212007 [hereinafter Press Release, Wine Institute].[/tippy] and is responsible for more than sixty percent of all wine sold in this country, [tippy title=󈮈″ header=”off”]See Press Release, Wine Institute, A Signature California Industry: California Wine (Apr. 3, 2007), available at http://www.wineinstitute.org/files/californiawineimpact.pdf.[/tippy] generating more than $58 billion in annual revenue in the state. [tippy title=󈮉″ header=”off”]See Press Release, Wine Institute, California Wine Has $51.8 Billion Economic Impact on State and $125.3 Billion on the U.S. Economy (Dec. 21, 2006), available at http://www.wineinstitute.org/resources/pressroom/120720060.[/tippy] The state’s success in winemaking led to the subsequent creation of licensed wineries in all fifty U.S. states. [tippy title=󈮊″ header=”off”]Sharon Kapnick, America: Land of the Red, White and Rose, Time, Mar. 17, 2003, at 83.[/tippy] California is now the fourth largest producer of wine in the world, trailing only France, Italy, and Spain. [tippy title=󈮋″ header=”off”]See Press Release, Wine Institute, supra note 51.[/tippy]

    II. California’s Crackdown on Food

    A. California’s State and Local Bans

    California’s unparalleled dual successes in the development of both world-class agriculture and cuisine are at risk today because of the strict food-regulatory climate in the state. The state currently has “some of the toughest food restrictions in the nation.” [tippy title=󈮌″ header=”off”]Jennifer Steinhauer, California Bars Restaurant Use of Trans Fats, N.Y. Times, July 26, 2008, at A1.[/tippy] Bans at the state or local level now threaten everything from authentic Hollandaise sauce and Caesar salad, [tippy title=󈮍″ header=”off”]See Joel Rubin, Making the Right Sick Call, L.A. Times, Nov. 3, 2007, at A1 (discussing the new statewide ban, ostensibly enacted for health reasons, on the popular foods).[/tippy] to tacos bought from some now-popular mobile stands, [tippy title=󈮎″ header=”off”]See Carolyn Marshall, Proposed Ban on Taco Trucks Stirs Animosity in a California Town, N.Y. Times, Jun. 15, 2007, available at http://www.nytimes.com/2007/06/15/us/15taco.html (describing opposition to a proposed ban on food served from taco trucks in Salinas, California).[/tippy] to farm-raised salmon, [tippy title=󈮏″ header=”off”]See Ann Powers, Farming the Ocean, 22 Nat. Res. & Env. 45, 46 (2007).[/tippy] to a host of other cuisines and agricultural products.

    Each of California’s 480 cities and towns [tippy title=󈮐″ header=”off”]League of California Cities, Facts at a Glance, http://www.cacities.org/index.jsp?zone=locc&previewStory=53 (last visited Apr. 1, 2010).[/tippy] and fifty-eight counties [tippy title=󈮑″ header=”off”]California State Association of Counties, California’s 58 Counties, http://www.csac.counties.org/default.asp?id=6 (last visited Apr. 1, 2010).[/tippy] has the power to enact certain laws and regulations under the state Constitution. [tippy title=󈮒″ header=”off”]See Cal. Const. art. XI.[/tippy] Many burdensome food regulations and prohibitions are born at the local level and percolate up to the state level, as in the case of menu labeling [tippy title=󈮓″ header=”off”]See infra Part IV.[/tippy] and restaurant smoking bans. [tippy title=󈮔″ header=”off”]See Letter from David E. Garth, President/CEO, San Luis Obispo Chamber of Commerce, to Nebraska Senators (Jan. 29, 2001), available at http://www.tobacco.org/News/010129garth.html.[/tippy] The reason for this is that advocates find it easier and less costly to secure a law’s passage at the local level than at the state level. [tippy title=󈮕″ header=”off”]See, e.g., Ellen Fried & Michele Simon, The Competitive Food Conundrum: Can Government Regulations Improve School Food?, 56 Duke L.J. 1491, 1535 (2007)
    A general rule of thumb is that it is harder politically to get things done at the federal level, somewhat less hard at the state level, and easiest at the local level. That is why so many public health advocates are fond of touting local policies as a critical strategy.[/tippy]

    Still, the bans that burden the greatest number of people are undoubtedly those in force across the state. Perhaps no food impacted by a California ban is more widely consumed than eggs. In 2008, California voters passed Proposition 2 (Prop 2), the Prevention of Farm Animal Cruelty Act. [tippy title=󈮖″ header=”off”]20 Cal. Health & Safety Code §§25990-94 (West 2001).[/tippy] The real regulatory dilemma inherent in Prop 2 lies in its ban of the use of battery cages to house egg-laying hens. [tippy title=󈮗″ header=”off”]See Carla Hall & Jerry Hirsch, Prop 2 Unlikely to Hike Egg Prices, L.A. Times, Nov. 6, 2008, at C1.[/tippy] The ban means that all such hens will have to be free-roaming by the implementation year. [tippy title=󈮘″ header=”off”]Id.[/tippy] Currently, the state is home to nearly four-dozen large-scale egg producers [tippy title=󈮙″ header=”off”]See Peter Singer, The Rights of Animals, Newsweek, Nov. 19, 2008, http://www.newsweek.com/id/169881.[/tippy] and more than 20 million hens, which lay close to 5 billion eggs each year. [tippy title=󈮚″ header=”off”]Daniel A. Sumner et al., University of California Agricultural Issues Center, Economic Effect of Proposed Restrictions on Egg-laying Hen Housing in California at i, (July 2008), available at http://aic.ucdavis.edu/publications/eggs/executivesummaryeggs.pdf.[/tippy] These numbers will plummet with the ban. Experts predict the number of eggs imported into the state in order to meet consumer demand will swell once the ban takes effect, since out-of-state eggs are not subject to the ban. [tippy title=󈮛″ header=”off”]Id. at iv.[/tippy]

    Another farm-raised food subject to a statewide ban in California is foie gras, a delicacy made from the engorged liver of a duck or goose. [tippy title=󈮜″ header=”off”]California Decides to Permanently Pull Foie Gras off the Menu, Humane Society of the U.S., Oct. 8, 2004, http://www.hsus.org/farm/news/ournews/california_bans_foie_gras.html [hereinafter California Decides].[/tippy] Foie gras has probably existed since the time of the pharaohs, when Jewish slaves first noted that migrating geese tended to gorge themselves prior to their journey. [tippy title=󈮝″ header=”off”]See generally Baylen Linnekin, The Goose is Nothing: Fighting Chicago’s Foie Gras Ban, Doublethink, July 8, 2007, http://americasfuture.org/doublethink/2007/07/08/the-goose-is-nothing-fighting-chicago%E2%CC80%99s-foie-gras-ban/.[/tippy] Jews brought their knowledge of foie gras to Europe, where French chefs eventually made the dish a staple part of the country’s haute cuisine, and exported it around the globe wherever French food became popular. [tippy title=󈮞″ header=”off”]See id.[/tippy] Today, it often appears on French menus in the United States and elsewhere in appetizers, or as an ingredient in dishes like Beef Wellington. [tippy title=󈮟″ header=”off”]Id.[/tippy] Though both duck and goose foie gras are popular in France, duck is the chief variety consumed in the United States. [tippy title=󈮠″ header=”off”]Id.[/tippy] New York State is the chief supplier of foie gras in America, followed by California. [tippy title=󈮡″ header=”off”]Id.[/tippy]

    In 2004, California banned foie gras, [tippy title=󈮢″ header=”off”]Cal. Health & Safety Code §§25980-25984 (West 1999).[/tippy] becoming the first state in the nation to do so. [tippy title=󈮣″ header=”off”]See California Decides, supra note 72.[/tippy] Just as with the egg-crate ban, proponents of the foie gras ban based their opposition to foie gras on animal-rights grounds, claiming that the process of fattening the liver of fowl, which the French call gavage, is cruel. [tippy title=󈮤″ header=”off”]See Linnekin, supra note 73.[/tippy] The ban, passed by the state legislature and signed into law by Gov. Arnold Schwarzenegger, prohibits the manufacture or sale of foie gras beginning in 2012. [tippy title=󈮥″ header=”off”]See id. California Decides, supra note 72.[/tippy] The ban will impact Sonoma Artisan Foie Gras, the sole producer in the state [tippy title=󈮦″ header=”off”]See Sonoma Artisan Foie Gras, Industry Issues, http://www.artisanfoiegras.com/ (last visited Apr. 1, 2010).[/tippy] restaurants and grocers who wish to sell foie in California and consumers there who wish to buy it in an eatery, or to cook and serve it at home.

    The state has also banned agricultural products not on animal-rights grounds but out of fear of an environmental cataclysm caused by genetic engineering. Food producers have turned increasingly to genetically modified food (“GMO”), both crops and animals, in order to help the modified organism combat pests or disease, or to introduce to the food new traits or traits too difficult or costly to introduce through selective breeding alone. [tippy title=󈮧″ header=”off”]See, e.g., U.S. Dept. Energy, Human Genome Project, What are Genetically Modified (GM) Foods?, http://www.ornl.gov/sci/techresources/Human_Genome/elsi/gmfood.shtml (last visited Apr. 1, 2010).[/tippy] However, because of fears by some growers that countries like Japan might reject genetically modified rice from California, [tippy title=󈮨″ header=”off”]See Matt Gnaizda, California Growers Wary of Genetically Modified Rice, Epoch Times (Los Angeles), Mar. 13, 2009, http://en.epochtimes.com/news/7-3-13/52763.html.[/tippy] the California Rice Certification Act of 2000 [tippy title=󈮩″ header=”off”]Cal. Food & Agric. Code §§55003, 55040 (West Supp. 2009).[/tippy] banned the growing of GMO rice in the state. [tippy title=󈮪″ header=”off”]See Thomas P. Redick & Donald L. Uchtmann, Coexistence Through Contracts: Export-Oriented Stewardship in Agricultural Biotechnology vs. California’s Precautionary Containment, 13 Drake J. Agric. L. 207, 227-28 (2008).[/tippy] California also bans genetically modified fish from being introduced into its waters, [tippy title=󈮫″ header=”off”]See Ann Powers, Farming the Ocean, 22 Nat. Res. & Env. 45, 46 (2007).[/tippy] making it the only state to ban entirely a genetically modified organism. [tippy title=󈮬″ header=”off”]See Doug Farquhar & Liz Meyer, State Authority to Regulate Biotechnology Under the Federal Coordinated Framework, 12 Drake J. Agric. L. 439, 459 (2007).[/tippy] The science behind both bans remains unclear. Referring to the fish ban, California Fish and Game commissioner Sam Schuchat called the ban “a question of values, . . . not a question of science.” [tippy title=󈮭″ header=”off”]Don Thompson, State Pulls Plug on Glowing Fish, Oakland Tribune, Dec. 4, 2003, at 3.[/tippy]

    While animal rights and environmentalism are key factors behind some California bans, obesity is a driving force behind others, including those pertaining to trans fats, soda, and other foods served in schools. Trans fats occur naturally in all ruminant animals but also appear in hydrogenated cooking oils. [tippy title=󈮮″ header=”off”]See, e.g., Kim Severson, Trans Fat Fight Claims Butter as a Victim, N.Y. Times, Mar. 7, 2007, at F1.[/tippy] Critics contend artificial trans fats cause obesity, heart disease, and other ills. [tippy title=󈮯″ header=”off”]See Press Release, California Office of the Governor, Governor Schwarzenegger Promotes Health and Nutrition by Signing Nation-Leading Trans Fat Bill (July 25, 2008), available at http://gov.ca.gov/press-release/10291/ [hereinafter Governor Schwarzenegger Promotes Health and Nutrition].[/tippy] Los Angeles attempted to ban trans fats in 2006, just a week after New York City became the first city in the nation to do so. [tippy title=󈮰″ header=”off”]See Esther Choi, Comment, Trans Fat Regulation: A Legislative Remedy for America’s Heartache, 17 S. Cal. Interdisc. L.J. 507, 534 (2008).[/tippy] California’s state constitution, however, did not permit the city to enact the ban. [tippy title=󈮱″ header=”off”]Id.[/tippy] Then, in 2008, California became the first state to ban the use of trans fats. [tippy title=󈮲″ header=”off”]See Patrick McGreevy, State Bans Trans Fats, L.A. Times, July 26, 2008, at A1.[/tippy] The ban will come into force in 2010 for restaurants in the state, and will apply to baked goods as of 2011. [tippy title=󈮳″ header=”off”]See Governor Schwarzenegger Promotes Health and Nutrition, supra note 91.[/tippy] Critics of trans fat bans contend the laws have no impact on obesity, and may instead be counterproductive. [tippy title=󈮴″ header=”off”]See Baylen Linnekin, Solving the Problem of Childhood Obesity, Reason.com, Mar. 31, 2009, http://reason.com/news/show/132597.html (“[Bans have] either been ineffective or disturbingly counterproductive, [says former USDA nutrition official Brian Wansink, now a Cornell University professor]. All the data we’ve seen about menu labeling doesn’t show a consistent answer at all.”) (internal quotations omitted).[/tippy]

    Foods served in public schools are subject to myriad regulations, nowhere more so than in California. [tippy title=󈮵″ header=”off”]See Fried & Simon, supra note 65, at 1520 (“California has been a hotbed of activity over school nutrition for years.”).[/tippy] In the push to tame childhood obesity, the state was in 2004 the first in the nation to ban soda from being served in grades K-8. [tippy title=󈮶″ header=”off”]See id. See also David Harsanyi, Nanny State 51 (2007) (noting California’s soda ban has had no impact on obesity rates in the state).[/tippy] On another school front, one pending bill, S.B. 416, would amend the state food and agriculture code in order to banish from school cafeterias any meat or poultry that has been raised with the help of antibiotics. [tippy title=󈮷″ header=”off”]See S.B. 416, 2009-2010 Sess. (Cal. 2009) (As originally drafted and introduced by Sen. Florez on Feb. 26, 2009).[/tippy] In 2005, also under the guise of combating obesity, California legislators established school nutrition guidelines that went into effect in 2007. [tippy title=�″ header=”off”]See Patricia Leigh Brown, As School Food Slims Down, Bake Sales are Out, N.Y. Times, Nov. 10, 2008, at A16 (“The old-fashioned school bake sale, once as American as apple pie, is fast becoming obsolete in California.”).[/tippy] These guidelines have had their greatest impact on one of America’s most beloved, civic-minded, and benevolent youth-fundraising activities: bake sales. Since there is no way to regulate ingredients used in foods made at home, schools throughout the state have banned cupcakes and brownies and, as one school newspaper put it, turned “birthday cakes into contraband.” [tippy title=�″ header=”off”]See id.[/tippy]

    B. California’s State and Local Regulations

    Though less severe than an outright ban, a regulation can have a similar impact on producers and consumers. When a regulation tarnishes a product and makes it substantially less attractive to a consumer, a regulation can function much like a ban.

    Los Angeles experimented with a “truth-in-menu” law in the 1970s, in part to combat the problem of area restaurants serving Roquefort dressing made of blue cheese and Maine lobsters that actually came from Rhode Island. [tippy title=�″ header=”off”]See Mimi Sheraton, When the Menu Misleads You, N.Y. Times, June 29, 1977, at C1.[/tippy] This legitimate effort to combat genuine deceit was a reasonable reaction to a real problem. Three decades later, in 2008, California became the first state to implement a statewide menu-labeling law. [tippy title=�″ header=”off”]S.B. 1420, 2007-2008 Sess. (Cal. 2008). See also Press Release, Center for Science in the Public Interest, California First State in Nation to Pass Menu Labeling Law (Sept. 30, 2008), available at http://www.cspinet.org/new/200809301.html.[/tippy] The new law is not a “truth-in-menu” law but, rather, requires calorie labeling on restaurant menus for operators that have more than twenty locations in the state. [tippy title=�″ header=”off”]See Press Release, California Office of the Governor, Governor Schwarzenegger Signs Legislation Promoting Nutrition and Healthier Options (Sept. 30, 2008), available at http://gov.ca.gov/index.php?/press-release/10682/.[/tippy] The law did not arise in response to any deception but, instead, came about as a general response to the problem of obesity. [tippy title=�″ header=”off”]See id.[/tippy] The law impacts close to 17,000 restaurants. [tippy title=�″ header=”off”]See Patrick McGreevy, State To Require Calorie Counts, L.A. Times, Sept. 30, 2008, at B1.[/tippy] Critics of the menu-labeling law note that nearly every restaurant required by the law to post calorie information already does so at its website, provides such information on site, or both. [tippy title=�″ header=”off”]James Barron, Restaurants Must Post Calories, Judge Affirms, N.Y. Times, Apr. 17, 2008, at B4.[/tippy]

    Another restaurant labeling requirement springs from Proposition 65 (Prop 65), the Safe Drinking Water and Toxic Enforcement Act (the “Act”), a statewide ballot initiative passed in 1986 by California voters. [tippy title=�″ header=”off”]See Cal. Office of Environmental Health Hazard Assessment, Proposition 65, http://www.oehha.org/prop65.html (last visited Apr. 1, 2010).[/tippy] Prop 65 requires the state’s Office of Environmental Health Hazard Assessment, housed in the California Environmental Protection Agency, to maintain a list of substances that are known by the state to cause cancer or birth defects. [tippy title=�″ header=”off”]See Cal. Health & Safety Code §25249.6, Safe Drinking and Toxic Water Enforcement Act of 1986 (West 2006).[/tippy] The Act does not ban the substances, but instead requires businesses in which any of the substances are present at the minutest levels to post intimidating warning signs in prominent places. No specific manner of warning is required, meaning that warnings “can be given by a variety of means, such as by labeling a consumer product [or] posting signs.” [tippy title=�″ header=”off”]See Cal. Office of Environmental Health Hazard Assessment, Proposition 65 in Plain Language!, http://oehha.ca.gov/Prop65/background/p65plain.html (last visited Apr. 1, 2010) [hereinafter Proposition 65 in Plain Language!]. See also Cal. Office of Environmental Health Hazard Assessment, Acrylamide and Proposition 65: Questions and Answers, May 2005, http://www.oehha.org/Prop65/acrylamideqa.html [hereinafter Acrylamide and Proposition 65] (“In many cases, the warning appears on a product’s label, but warnings can be placed on signs in retail outlets or be provided through any other form of communication that conveys the warning in a clear and reasonable manner.”).[/tippy] In restaurants and groceries, this often means a sign posted on the establishment’s wall. Many individual products sold in groceries also contain warning labels. [tippy title=�″ header=”off”]See Grocery Manufacturers Association, Warning on Product Labels–Proposition 65, http://www.gmabrands.com/publicpolicy/docs/WhitePaper.cfm?docid=271 (last visited Apr. 1, 2010).[/tippy] These postings alert consumers to the presence on that business’s premises of a cancer-causing agent, one that could harm pregnant women, or both. [tippy title=�″ header=”off”]Id.[/tippy] The required cancer warning, for example, reads, WARNING: This product contains a chemical known to the state of California to cause cancer. [tippy title=�″ header=”off”]Cal. Code Regs. tit. 27 §25601 (2008).[/tippy] While Prop 65 empowers state and local prosecutors to enforce the Act, it also provides a private right of action to any person in the state to bring suit under the Act, and permits the award of money damages for violations. [tippy title=�″ header=”off”]Cal. Code Regs. tit. 11 §§3000-3204 (2003).[/tippy]

    The Act, as originally envisioned and implemented, did not apply to foods. [tippy title=�″ header=”off”]See, e.g., Alexander Volokh, The Pitfalls of Environmental Right-to-Know, 2002 Utah L. Rev. 805, 812-13 (2002).[/tippy] Over the last decade, though, scientists learned that acrylamide–a chemical known to cause cancer, according to Prop 65–occurs naturally in some foods like olives, and in bread and other starchy foods that are baked or fried. [tippy title=�″ header=”off”]See, e.g., FDA Consumer, Final FDA Acrylamide Action Plan, Data, May-June 2004, http://findarticles.com/p/articles/mi_m1370/is_3_38/ai_116734857/
    In April 2002, the Swedish National Food Administration reported finding elevated levels of acrylamide in starch-containing foods cooked at high temperatures, such as potato products and bread…. The novel finding in the most recent sampling is the presence of acrylamide in black olives, prune juice, and Postum, a powdered beverage.[/tippy] As a result, Prop 65 now requires restaurateurs and grocers who sell healthy foods like bread and olives to warn customers of the presence of cancer-causing substances.

    California sued potato chip and french fry sellers over the unwarned presence of acrylamide in their foods. [tippy title=�″ header=”off”]See Lockyer v. Frito-Lay, Case No. BC338956 (L.A. Super. 2005) Bob Egelko, Lawsuit Over Chips is Settled, S.F. Chron., Aug. 2, 2008, at B3. See also Press Release, California Office of Attorney General, Attorney General Lockyer Files Lawsuit to Require Consumer Warnings About Cancer-Causing Chemical in Potato Chips and French Fries (Aug. 26, 2005), available at http://ag.ca.gov/newsalerts/release.php?id=1207. Several parties to the suit settled, agreeing to pay a fine and reduce acrylamide levels in their food.[/tippy] More recently, the Physicians Committee for Responsible Medicine (“PCRM”), a vegetarian-activist group, [tippy title=�″ header=”off”]See Center for Consumer Freedom, 7 Things You Didn’t Know About PCRM, Oct. 17, 2008, http://www.consumerfreedom.com/article_detail.cfm/article/168 (describing PCRM as devoted to animal rights and veganism, rather than to medicine).[/tippy] filed suit under Prop 65 against McDonald’s, Burger King, and others. [tippy title=�″ header=”off”]See Andrew Grossman, California’s Prop 65: Protecting us from the Evils of Cooked Chicken, Overlawyered, Dec. 26, 2006, http://overlawyered.com/2006/12/californias-prop-65-protecting-us-from-the-evils-of-cooked-chicken/.[/tippy] The suit claimed the chains had failed to warn customers that some of the chains’ foods contain heterocyclic amines, a substance that also appears on the Prop 65 warning list and that, like acrylamide in bread, forms naturally in some foods, especially in cooked poultry. [tippy title=�″ header=”off”]See Press Release, Physicians Committee for Responsible Medicine, Fast-Food Grilled Chicken Contains Dangerous Carcinogen, Laboratory Tests Reveal (Sept. 28, 2006), available at http://www.pcrm.org/news/release060928.html.[/tippy] At least one defendant, Burger King, settled with PCRM, agreeing to add a Prop 65 warning label to its grilled chicken products. [tippy title=�″ header=”off”]See Physicians Committee for Responsible Medicine, Burger King Alerts Customers to Cancer-Causing Chemical in Grilled Chicken, PCRM Online Newsletter, Dec. 2008, http://www.pcrm.org/newsletter/dec08/burger_king.html.[/tippy]

    Prop 65 also applies to alcohol beverages. It mandates that, in addition to cautioning customers not to drink in excess or drive drunk, sellers of alcohol beverages label their products with warnings alerting the consumer that the products can cause cancer and harm developing fetuses. [tippy title=�″ header=”off”]See, e.g., Harsanyi, supra note 98, at 146.[/tippy] California regulators have also targeted the state’s important alcohol beverage industry in a variety of other ways. In 2002, winemakers were forced to adopt more “sustainable,” costly practices in order to stave off threatened environmental regulations. [tippy title=�″ header=”off”]See California Wine Sector Going Green to Avert Regulation, GreenBiz.com, Oct. 24, 2002, http://www.greenbiz.com/news/2002/10/24/california-wine-sector-going-green-avert-regulation (noting the California wine industry adopted over 300 pages of voluntary environmental standards “in a bid to head off potentially costly state regulation”).[/tippy] Then, in 2008, facing a record budget deficit, California proposed a massive 640 percent tax increase on wine. [tippy title=�″ header=”off”]See Wine Institute, 640% Wine Excise Tax Increase Will Eliminate Jobs, Reduce Sales & Harm Industry, http://wineinstitute.org/files/KeyPointsonProposedTaxIncrease.pdf.[/tippy] Under the proposal, the state’s wine excise tax would rise from the current .20 per gallon to $1.48 per gallon. [tippy title=�″ header=”off”]Id.[/tippy] A report prepared by Stonebridge Research for the Wine Institute, a California wine industry advocacy group, estimates the tax increase could cost more than 11,000 wine-industry jobs in the state. [tippy title=�″ header=”off”]See Stonebridge Research, Economic Impact of Proposed Excise Tax Surcharge on California Wine 4 (2009), available at http://www.wineinstitute.org/files/StonebridgeReport.pdf.[/tippy]

    Also in 2008, California’s State Board of Equalization opted to re-categorize flavored beers, known by critics as “alcopops,” as distilled spirits. [tippy title=�″ header=”off”]See Press Release, California State Board of Equalization, Judy Chu Announces Flavored Malt Beverages to be Taxed as Distilled Spirits (June 11, 2008), available at http://www.boe.ca.gov/news/2008/37-08-C.pdf.[/tippy] The Board couched the reclassification in language indicating it came to its decision in order to “send a signal to youth that alcopops are hard liquor.” [tippy title=�″ header=”off”]Id.[/tippy] The change, though, like the proposed wine excise tax increase, is really little more than a spectacular 1,600 percent tax increase. [tippy title=�″ header=”off”]See Press Release, Diageo, Tax Increase on Flavored Beer Adopted Today in California: Flavored Malt Beverage Coalition Will Pursue Litigation to Challenge the Regulation (June 19, 2008), available at http://www.diageo.com/en-row/NewsAndMedia/PressReleases/2008/Tax+Increase+On+Flavored+Beer+Adopted+Today+in+California.htm.[/tippy] Diageo-Guinness USA, the American arm of the international beverage giant, has filed suit, claiming the Board of Equalization overstepped its authority when it reclassified flavored beer. [tippy title=�″ header=”off”]See Diageo-Guinness USA, Inc. v. California State Bd. Equalization, Case No. 34-2008-00013031 (Sacramento County Super. Ct. 2008). See also Diageo Challenges California Beer Tax Change, Forbes.com, June 17, 2008, http://www.forbes.com/feeds/afx/2008/06/17/afx5122509.html.[/tippy]

    Another beverage subject to current scrutiny in California is unpasteurized (raw) milk. Raw milk products are increasingly popular in California and, indeed, across the United States. [tippy title=�″ header=”off”]See Carol Reiter, Cheers to Raw Milk is What Devoted Fans Say, Merced Sun-Star, Jan. 16, 2009, at A1.[/tippy] Raw milk sales often come at the expense of dairy products sold by larger, pasteurized dairy operations. [tippy title=�″ header=”off”]See U.S.D.A., California Agricultural Statistics: 2007 Crop Year, supra note 1, at 65 (showing that a large number of California dairies closed in 2007).[/tippy] One dairy in the state estimates that 100,000 Californians drink raw milk every week. [tippy title=�″ header=”off”]Wendy Cole, Got Raw Milk? Be Very Quiet, Time, Mar. 13, 2007, available at http://www.time.com/time/health/article/0,8599,1598525,00.html.[/tippy] Proponents believe raw milk products taste better and contain beneficial bacteria that are killed during the pasteurization process. [tippy title=�″ header=”off”]See, e.g., Elena Conis, The Raw Milk Factor, L.A. Times, Mar. 2, 2009, at F3.[/tippy]

    Still, though it is legal to buy and sell raw milk in California, the regulatory tide against raw milk is growing in the state. The state cracked down on bacteria levels in raw milk in 2007. [tippy title=�″ header=”off”]See Carol Ness, Tough New Standards for State’s Raw Milk, S.F. Chron., Oct. 26, 2007, at A1.[/tippy] The crackdown was launched in part in response to the illness of four children who drank raw milk from California’s largest raw milk producer, Organic Pastures Dairy. [tippy title=�″ header=”off”]See David E. Gumpert, Getting a Raw Deal?, BusinessWeek, Sept. 28, 2006, http://www.businessweek.com/smallbiz/content/sep2006/sb20060928_865207.htm.[/tippy] Though the source of the illnesses was never traced to raw milk, [tippy title=�″ header=”off”]See John Hall, Murrieta Family Suing in E. coli Case, North County Times, Mar. 2, 2008 (declaring that no “pathogen was…found in any of the manure tests of [Organic Pastures’] cows or in any tests of packaged dairy products from his business”).[/tippy] the state began enforcing the 2007 regulations by employing undercover sting operations against various dairy operations. [tippy title=�″ header=”off”]Adam Foxman, Raw Milk Issue a Mix-Up, Says Dairy Owner, Ventura County Star, Jan. 11, 2009, at B1.[/tippy] Then, in 2008, Governor Schwarzenegger vetoed a bill that would have established separate bacteria content standards for raw milk, which would have allowed producers of raw milk to better compete with competitors who sell pasteurized milk. [tippy title=�″ header=”off”]See Conis, supra note 134 S.B. 201, 2007-2008 Sess. (Cal. 2008).[/tippy]

    III. The “California Effect” and America’s Food Future

    A. California’s Food Crackdown: Why Care?

    California is banning and cracking down on food. But why should the nearly eighty-eight percent of Americans who live outside the state care what California regulates in California? What makes California’s food regulations more important to a resident of Peoria, Illinois than, say, Salem, Oregon’s proposal to ban at-home cooks from raising chickens in residential areas? [tippy title=�″ header=”off”]See Thelma Guerrero-Huston, Salem’s Chicken Ban Faces Debate, Statesman Journal, Mar. 2, 2009, at A1.[/tippy] Why not focus on this chicken ban or on any of the thousands of food regulations and bans in effect or under consideration around the country in places other than California? [tippy title=�″ header=”off”]Whatever the cause, the “California effect” may have as much to do with smaller-state envy as it has to do with California’s wealth and power. See infra Part III.B.[/tippy]

    From a culinary perspective, every American should care about California food regulations because the state grows and raises the bulk of our food. It is the capital of “new American cuisine,” which was borne of “California cuisine.” [tippy title=�″ header=”off”]See supra Part I.[/tippy] Much of what we eat and how we eat it are of California. Consider that it can be difficult today to eat a meal in America free of California ingredients or culinary inspiration. Your lobster may come from Maine, but in all likelihood your butter and your salad, your asparagus and your Chardonnay, and your after-dinner ice cream and strawberries come from California. What’s more, pairing lobster with grilled asparagus and wine–the inspiration for your dish–probably also came from California.

    From a regulatory perspective, every American should care about California’s propensity to ban and restrict food because the state is the nation’s regulatory bellwether, [tippy title=�″ header=”off”]See Fried & Simon, supra note 65, at 1520 (calling California “a policy bellwether”).[/tippy] the genesis of many “tipping point” regulatory epidemics. [tippy title=�″ header=”off”]See Malcolm Gladwell, The Tipping Point: How Little Things Can Make a Big Difference 7 (2000) (likening the birth of new trends and phenomena to “epidemics”).[/tippy] California is where regulations go from seed to seedling to weed, and from whence they subsequently propagate and pervade America.

    B. The “California Effect” Generally

    In 1995, Professor David Vogel of Berkeley’s Haas School of Business described the spread of strict regulations from larger, more influential states to other states as the “California effect.” [tippy title=�″ header=”off”]David Vogel, Trading Up: Consumer and Environmental Regulation in a Global Economy 5-8, 259 (1995).[/tippy] The term “refers to the critical role of powerful and wealthy ‘green’ political jurisdictions in promoting a regulatory ‘race to the top’ among their trading partners.” [tippy title=�″ header=”off”]Id. at 6.[/tippy] The California effect is a more expansive concept than is federalism, because the effect concerns not just the notion of fifty experimental laboratories but “the ratcheting upward of regulatory standards in competing political jurisdictions.” [tippy title=�″ header=”off”]Id. at 259 (“The term ‘California effect’ is meant to connote a much broader phenomenon than the impact of American federalism on federal and state regulatory standards.”).[/tippy] Vogel posits that in any given free market economy, as between and among states in America, the whims of “wealthy, powerful states” like California will have an outsized influence that impacts not just regulations within the home state but also in others who trade with that state. [tippy title=�″ header=”off”]Id. at 5, 7.[/tippy] Focusing much of his research on environmental regulations, Vogel notes that these factors have meant that California’s strict regulations have “helped drive many American environmental regulations upward” throughout the United States. [tippy title=�″ header=”off”]Id. at 6.[/tippy]

    Vogel uses the example of California’s strict automobile emissions standards to illustrate this effect. In 1970, the federal government adopted vehicle emissions standards, and permitted California alone to set stricter standards. [tippy title=�″ header=”off”]Id. at 259.[/tippy] The state capitalized on the exemption. [tippy title=�″ header=”off”]Id.[/tippy] When, in 1990, the federal government chose to implement stricter emissions standards, it adopted California’s regulations, and permitted the state to adopt still-stricter standards. [tippy title=�″ header=”off”]Id.[/tippy] California again adopted even more stringent requirements, which a dozen states and the District of Columbia in turn adopted as their own. [tippy title=�″ header=”off”]Id.[/tippy]

    In this example, California’s decisions influenced both federal and other states’ laws. [tippy title=�″ header=”off”]See Peter P. Swire, The Race to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdictions in Environmental Law, 14 Yale L. & Pol’y Rev. 67, 82 (1996).[/tippy] More important, California’s stricter regulations influenced automakers, who had to choose whether to opt out of the California market (and later, thirteen others) or to “preserve valuable market access” by building cars that met the stricter standards. [tippy title=�″ header=”off”]See David S. Law, Globalization and the Future of Constitutional Rights, 102 Nw. U. L. Rev. 1277, 1292 (2008).[/tippy] Though automakers and California both sued each other over the rules, [tippy title=�″ header=”off”]Cent. Valley Chrysler-Jeep, Inc. v. Goldstene, 529 F. Supp. 2d 1151 (E.D. Cal. 2007), appeal docketed, No. 08-17378 & 08-17380 (9th Cir. 2008). Compare Bob Egelko, State Wins in U.S. Court on Tailpipe Emissions, S.F. Chron., Dec. 13, 2007, at A1 (outlining one industry lawsuit against the state), with Mark Lifsher, California Sues Over Vehicle Emissions, L.A. Times, Sept. 21, 2006, at C1 (outlining a California lawsuit against the auto industry that seeks to reduce tailpipe emissions).[/tippy] no automaker chose to stop selling its vehicles in the state.

    Outside of vehicle emissions, instances of the “California effect” abound. Perhaps the best example is California’s leadership in the spread of smoking bans across America. The city of San Luis Obispo, California passed the world’s first public anti-smoking ordinance in 1990. [tippy title=�″ header=”off”]Miles Corwin, Smokers Snuffed: San Luis Obispo Will Implement Nation’s Toughest Tobacco Law Today, L.A. Times, Aug. 2, 1990, at A3. Cf. Robert Reinhold, In a Smoking Ban, Some See Ashes, N.Y. Times, Aug. 15, 1990, at A22 (noting that two California cities and one in Colorado had just months later followed San Luis Obispo).[/tippy] Four years later, the state became the first in the nation to ban indoor smoking in public areas. [tippy title=�″ header=”off”]See American Nonsmokers’ Rights Foundation, Summary of 100% Smokefree State Laws and Population Protected by 100% U.S. Smokefree Laws, Jan. 5, 2010, http://www.no-smoke.org/pdf/SummaryUSPopList.pdf.[/tippy] Today, thirty-one other states and the District of Columbia, [tippy title=�″ header=”off”]See id.[/tippy] along with more than 3,000 municipalities around the country, have nonsmoking laws modeled after California’s. [tippy title=�″ header=”off”]See American Nonsmokers’ Rights Foundation, Overview List–How Many Smokefree Laws?, Jan. 5, 2010, http://www.no-smoke.org/pdf/mediaordlist.pdf. To explore the spread of smoking bans, see generally Patrick Kabat, Note, “Till Naught but Ash is Left to See”: Statewide Smoking Bans, Ballot Initiatives, and the Public Sphere, 9 Yale J. Health Pol’y L. & Ethics 128 (2009).[/tippy]

    C. The California Effect and Food

    While regulations concerning smoking are important to certain constituencies, California regulations concerning food and agriculture impact every American. [tippy title=�″ header=”off”]See supra Parts I-III.[/tippy] The California effect, along with California’s place as “a national trendsetter in all matters edible,” [tippy title=�″ header=”off”]See Steinhauer, supra note 56.[/tippy] increasingly means that the state’s burdensome food regulations are spreading across the United States. This article now posits several categories of California effects pertaining to food regulations.

    1. California Regulations Passed & Considered in Other States: Foie Gras

    When California banned foie gras in 2004, it was the first state to do so. Chicago soon followed suit. [tippy title=�″ header=”off”]Chicago overturned its ban in 2008. See BBC News, Chicago Overturns Foie Gras Ban, May 15, 2008, http://news.bbc.co.uk/go/pr/fr/-/2/hi/americas/7403409.stm.[/tippy] New York State, America’s largest producer of foie gras, briefly considered a ban, [tippy title=�″ header=”off”]Posting of John Del Signore to Gothamist http://gothamist.com/2008/06/11/councilman_urges_albany_to_ban_forc.php (June 11, 2008, 16:06 EST).[/tippy] as did New Jersey, home of D’Artagnan, America’s largest seller of foie gras. [tippy title=�″ header=”off”]See Gordon Anderson, Crisis in the Foie Gras Biz, CNN.com, June 11, 2004, http://money.cnn.com/2004/06/10/pf/goodlife/foie_gras/index.htm.[/tippy] Other states also considered bans, [tippy title=�″ header=”off”]Lisa Rein, Panel Airs Proposed Foie Gras Ban, Wash. Post, Mar. 5, 2008, at B5.[/tippy] and at least one municipal government enacted a formal ban. [tippy title=�″ header=”off”]See WJZ.com, Takoma Park Bans Foie Gras, July 19, 2008, http://wjz.com/pets/duck.foie.gras.2.775053.html.[/tippy] One activist group has petitioned the U.S. Department of Agriculture (“USDA”) in hopes of forcing a federal ban. [tippy title=�″ header=”off”]See Press Release, Humane Society of the United States, Animal Protection Groups File Legal Petition Asking USDA to Declare Foie Gras Unfit for Human Consumption (Nov. 28, 2007), available at http://www.hsus.org/press_and_publications/press_releases/usdafoiegras112807.html.[/tippy] A New York ban, New Jersey ban, or federal ban would effectively cripple foie gras production, sales, and consumption in America.

    2. California Regulations Adopted by the Federal Government: Organic Certification

    California’s experience with regulations concerning organic certification closely parallels the story of vehicle emissions standards. California Certified Organic Farmers (“CCOF”), the first organic certifying body in America, formed in 1973. [tippy title=�″ header=”off”]See CCOF, History of CCOF, http://www.ccof.org/history_mr.php#sec1 (last visited Apr. 1, 2010) Press Release, CCOF, CCOF Achieves Largest U.S. Organic Certifier Status (Jan. 15, 2006), available at http://www.ccof.org/pr0106.php [hereinafter Press Release, CCOF].[/tippy] By the end of 1974, similar bodies had emerged in eleven other states, including Oregon. [tippy title=�″ header=”off”]See Guthman, supra note 43, at 113.[/tippy]

    California passed the nation’s first true organic certification law in 1979. [tippy title=�″ header=”off”]Id.[/tippy] Though Oregon’s law preceded that of California, [tippy title=�″ header=”off”]See Kyle W. Lathrop, Note, Pre-Empting Apples with Oranges: Federal Regulation of Organic Food Labeling, 16 J. Corp. L. 885, 891 (1991).[/tippy] Oregon’s law was chiefly an anti-fraud measure [tippy title=�″ header=”off”]See id. See also Kenneth C. Amaditz, Comment, The Organic Foods Production Act of 1990 and its Impending Regulations: A Big Zero for Organic Food?, 52 Food & Drug L.J. 537, 539 (1997).[/tippy] intended only to classify which producers could advertise their products as “organic.” [tippy title=�″ header=”off”]Sunbow Farm, A History of Oregon Tilth, http://www.sunbowfarm.org/tilth.php (last visited Apr. 1, 2010).[/tippy] California regulations built upon Oregon’s and in addition defined the term “synthetic,” contained public disclosure provisions, and required specific organic labeling language. [tippy title=�″ header=”off”]See Gordon G. Bones, State and Federal Organic Food Certification Laws: Coming of Age?, 68 N.D. L. Rev. 405, 410 & n.26 (1992).[/tippy] In 1982, California amended the 1979 regulations, making the state the first to define the term “organic.” [tippy title=�″ header=”off”]See, e.g., Luanne Lohr & Timothy A. Park, Improving Extension Effectiveness for Organic Clients: Current Status and Future Directions, 28 J. Agric. & Res. Econ. 634, 645 (2003).[/tippy] In 1990, California again amended its law, [tippy title=�″ header=”off”]Cal. Health & Safety Code §§110810-110958 (repealed 2003).[/tippy] permitting public agencies or private certifiers like CCOF, today the nation’s largest such body, [tippy title=�″ header=”off”]See Press Release, CCOF, supra note 169.[/tippy] to inspect growers to ensure compliance with the regulations.

    In 1990, Congress enacted the first federal organic standards. [tippy title=�″ header=”off”]See 7 U.S.C. §§6501-6523 (2006).[/tippy] The California Organic Food Act of 1979, which was based on CCOF’s standards, played an important role in the creation of these national standards. [tippy title=�″ header=”off”]E-mail from Jane Baker, Director of Sales and Marketing, California Certified Organic Farmers (CCOF), (Mar. 10, 2009, 07:35 PST) (on file with author). See also Bones, supra note 175, at n.10 (“The most active state organization is the California Certified Organic Farmers (CCOF)… [which was] influential in the passage of state and federal organic food production legislation.”) Guthman, supra note 43, at 115 (asserting the federal government’s 1990 organics law was “largely modeled after the California law”).
    The California effect also holds true for the state’s administrative rules, which influence federal agency rulemaking as relates to food. For example, the USDA’s Agricultural Marketing Service (AMS) has proposed and is currently considering a marketing agreement, the National Leafy Greens Marketing Agreement, which the agency says would help food handlers “reduc[e] the risk of pathogenic contamination during the production and handling of leafy greens.” Handling Regulations for Leafy Greens Under the Agricultural Marketing Agreement Act of 1937, 72 Fed. Reg. 56678 (Oct. 4, 2007) (to be codified at 7 C.F.R. pt. 962). The USDA specified in its advanced notice of proposed rulemaking that:
    [M]embers of the California [leafy green vegetables] industry initiated the establishment of a State marketing agreement for handlers of leafy greens (http://www.caleafygreens.ca.gov/docs/resources.asp)…. Although AMS has not received an official proposal, members of the leafy greens industry have expressed interest in the establishment of similar standards through a Federal marketing program. Industry discussions have focused on the need for a program with national scope. In response, AMS is considering the development of a marketing agreement… to meet the needs of the produce industry across the fifty States and the District of Columbia.
    Id. at 56680. As with the USDA’s eventual organic rules, many small producers, organic farmers, and their supporters oppose the leafy-greens measure. See, e.g., Oregon Tilth, National Leafy Greens Marketing Agreement, http://tilth.org/news/national-leafy-greens-marketing-agreement (last visited Apr. 1, 2010) (describing the group’s own efforts “in concert with a number of other conservation and organic farming groups… in opposition of the Act, which OTCO believes would have serious detrimental consequences for organic growers and the environment, while [doing] little to decrease the incidence of food-borne illness”).[/tippy] Though the rule was based in part on California’s standards, organic activists in the state and elsewhere criticized the final rule as watered-down and overinclusive. [tippy title=�″ header=”off”]See, e.g., Claire S. Carroll, What Does ‘Organic‘ Mean Now? Chickens and Wild Fish are Undermining the Organic Foods Production Act of 1990, 14 San Joaquin Agric. L. Rev. 117, 126 (2004).[/tippy] These same critics had long lamented what had become of California’s own organic experience. The state’s organic farms today are not, for the most part, mom and pop operations. Instead, they are now mostly large, profitable corporate-owned farms that are in the organic business to (1) turn a profit and (2) hedge their bets–maintaining organic crops along with their conventional crops in large part out of fear that “the state might ban certain key pesticides.” [tippy title=�″ header=”off”]See Michael Pollan, The Omnivore’s Dilemma 174 (2006).[/tippy]

    3. California Regulations Forcing Uniformity Nationwide: The “Pennsylvania Bread” Effect

    The Pennsylvania food code [tippy title=�″ header=”off”]7 Pa. Code §46.3 (2004).[/tippy] requires all bread producers within and without the state who sell bread in Pennsylvania to register with the state’s agricultural department, and to print a registration mark to that effect on all bread packaging. [tippy title=�″ header=”off”]See Cecil Adams, Why is “Reg. Dept. Penna. Agr.” On So Many Labels?, The Straight Dope, http://www.straightdope.com/columns/read/306/why-is-reg-dept-penna-agr-on-so-many-labels (last visited Apr. 1, 2010).[/tippy] Because of this, consumers from Alabama to Wyoming are familiar with the language “Reg. Penna. Dept. Agr.” on bread packaging, [tippy title=�″ header=”off”]See Lathrop, supra note 172, at 904 (describing briefly the meaning of the term).[/tippy] even if these consumers have no idea what the term means. [tippy title=�″ header=”off”]See Adams, supra note 180.[/tippy] The reason this terminology appears on multi-state packaging, even though only Pennsylvania law requires the language, is that regional and national bakers find it less costly and easier to print the language on all packaging than it would be to “make up a separate package for Pennsylvanians.” [tippy title=�″ header=”off”]Id.[/tippy]

    What Pennsylvania’s bread registration is to bread packaging, California’s trans fat ban [tippy title=�″ header=”off”]See, e.g., California Bans Trans Fats in Restaurants, MSNBC.com, July 25, 2008, http://www.msnbc.msn.com/id/25853307/.[/tippy] is to the contents of many restaurant and packaged foods. The ban applies to national companies, most of whose menu selections and grocery items, respectively, are uniform throughout the nation. These restaurants and food manufacturers will have to decide if it would be–as in the Pennsylvania example–cheaper and easier to cut trans fats from their recipes nationwide, rather than having a California version of their product and another version of that same product for the rest of the country. Because of the California effect, that decision will be easier than they might have hoped states, [tippy title=�″ header=”off”]See, e.g., Darren Meritz, Bill Would Ban Trans Fat Use in Restaurants, El Paso Times, Mar. 21, 2009, at 5B (describing Texas’s plans to ban trans fats).[/tippy] counties, [tippy title=�″ header=”off”]See, e.g., Miranda S. Spivack, Montgomery Bans Trans Fats in Restaurants, Markets, Wash. Post, May 16, 2007, at A1.[/tippy] and cities [tippy title=�″ header=”off”]See, e.g., Martin Finucane, Boston Trans Fat Ban Goes Into Effect for Baked Goods, Boston Globe, Mar. 12, 2009, http://www.boston.com/news/local/breaking_news/2009/03/boston_trans_fa.html.[/tippy] around the country have followed California’s lead and introduced measures to ban trans fats.

    4. California Regulations Forcing Parties to Seek Preemptive, Uniform Federal Regulations: Menu Labeling

    California is the first state to require restaurants to post calorie counts alongside all menu items. [tippy title=�″ header=”off”]See Patrick McGreevy, State to Require Calorie Counts, L.A. Times, Sept. 30, 2008, at B1.[/tippy] The law applies to restaurants with twenty or more locations in the state. [tippy title=�″ header=”off”]Id.[/tippy]

    Scarcely had a San Francisco menu-labeling law [tippy title=�″ header=”off”]See, San Francisco Moves Forward on Menu Labeling, Nation’s Restaurant News, Mar. 12, 2008, http://www.nrn.com/breakingNews.aspx?id=351510&menu_id=1368.[/tippy] taken effect when California enacted its own statewide requirements. [tippy title=�″ header=”off”]See, e.g., Press Release, Center for Science in the Public Interest, California First State in Nation to Pass Menu Labeling Law (Sept. 30, 2008), available at http://www.cspinet.org/new/200809301.html.[/tippy] One of the biggest supporters of the regulation, perhaps surprisingly, was the California Restaurant Association (CRA), the state industry lobbying association. [tippy title=�″ header=”off”]See Press Release, California Restaurant Association, Governor Signs Menu Labeling Legislation Creating Statewide Standards (Sept. 30, 2008), available at http://www.calrest.org/go/cra/news-events/newsroom/governor-signs-menu-labeling-legislation-creating-statewide-standards/.[/tippy] In supporting a uniform state requirement, though, the CRA admitted that one preemptive state standard “was more reasonable for restaurants and their customers than a patchwork of differing local mandates.” [tippy title=�″ header=”off”]Id.[/tippy]

    But the California law does not solve the problem of differing local and state regulations across the nation complying with Seattle’s menu-labeling requirements [tippy title=�″ header=”off”]See News report by Tonya Mosely, Nutrition Menu Labeling Starts at King County Chain Restaurants, King5.com, Dec 31, 2008, http://www.king5.com/archive/60348702.html.[/tippy] does not necessarily mean compliance in Philadelphia. [tippy title=�″ header=”off”]See Press Release, Center for Science in the Public Interest, Philadelphia Passes Strongest Nutrition Labeling Requirements for Chain Restaurant Menus (Nov. 6, 2008), available at http://cspinet.org/new/200811061.html.[/tippy] Thus, following the CRA’s lead, the National Restaurant Association is supporting the federal LEAN Act, which would mandate nationwide menu-labeling standards. [tippy title=�″ header=”off”]See Press Release, National Restaurant Association, National Restaurant Association Applauds LEAN Act Introduction in U.S. House and Senate (Mar. 11, 2009), available at http://www.restaurant.org/pressroom/pressrelease.cfm?ID=1756.[/tippy]

    IV. What to Make of California’s Unpalatable Food Crackdown: Causes and Effects

    A. Why is California Cracking Down on Food?

    There is ample evidence California is cracking down on food at the state and local level. What is not so clear is why the state is doing so.

    It would be easy enough to blame the state’s food-regulatory climate on one person: Alice Waters. While Waters may be best known for creating the California cuisine movement and helping launch new American food, she is also a “Berkeley radical” [tippy title=�″ header=”off”]Harvey Levenstein, Paradox of Plenty: A Social History of Eating in Modern America 180 (2003).[/tippy] who is well known among both her peers and food-regulation experts for “accept[ing] the legitimacy of regulatory [food] bans” [tippy title=�″ header=”off”]Posting of Don Boudreaux to Cafe Hayek, http://www.cafehayek.com/hayek/2004/05/whats_good_for_.html (May 15, 2004).[/tippy] and favoring government meddling for the purpose of “legislating good eating habits.” [tippy title=�″ header=”off”]Interview by Jamie R. Liu with Anthony Bourdain, in Washington D.C. (Jan. 19, 2009), available at http://dcist.com/2009/01/chewing_the_fat_anthony_bourdain.php (discussing Bourdain’s thoughts on Waters).[/tippy] Indeed, it can be difficult to distinguish between Waters’s regulatory fervor and her passion for food. Her oft-repeated claim that “eating is a political act” [tippy title=�″ header=”off”]See, e.g., Eric Asimov, Proof of What They Say About Small Packages, N.Y. Times, July 30, 2003.[/tippy] has become intertwined with the California cuisine movement and has been incorporated into movements seeking “sustainable” food and “food democracy.” [tippy title=�″ header=”off”]See generally Neil Hamilton, Essay–Food Democracy and the Future of American Values, 9 Drake J. Agric. L. 9 (2004). Food democracy, though the author does not proffer a succinct definition of the term, concerns “building a more satisfying food system by offering alternatives to the ‘cheap’ foods that have come to define our diet[]” incorporating the “values” of small producers opposing fast food and agribusiness the right to be an informed consumer “the rights of farmers, chefs, and marketers to produce and market foods reflecting their diversity and creative potential and our nation’s ability to have a food system that promotes good health, confidence, understanding, and enjoyment as well as economic opportunity.” Id. at 12-13.[/tippy] As a result, Waters and her many acolytes in the state that provides so much bounty and inspiration to the rest of the country seem intent on limiting America’s access to anything edible that does not walk lockstep with the movement’s rigid ideals.

    Critics blast her movement, noting that not everyone can afford to eat like Waters, [tippy title=�″ header=”off”]See, e.g., Andrew Martin, Is a Food Revolution Now in Season?, N.Y. Times, Mar. 22, 2009, at SundayBusiness 1 (quoting a food marketing professor who says that organic food can be too expensive for some, and that canned and frozen foods are healthy and affordable).[/tippy] and disparage Waters herself, noting “her efforts [have] helped change the eating habits of the rich, not the poor.” [tippy title=�″ header=”off”]See Levenstein, supra note 201, at 180.[/tippy] Anthony Bourdain, a popular anti-regulatory chef, author, and television host, has been known to use expletives to describe Waters. [tippy title=�″ header=”off”]Cf. Liu, supra note 203. Others find Waters’ breathy manner of speech and slightly affected accent–Waters hails from New Jersey–to be equally irritating. See Interview by Charlie Rose with Alice Waters (Feb. 6, 2008), available at http://www.charlierose.com/view/interview/8925.[/tippy]

    In addition to owning restaurants, Waters has put her beliefs into action, as a central figure for the nonprofit Chefs Collaborative, formed in 1993. [tippy title=�″ header=”off”]Chefs Collaborative, About Chefs Collaborative, http://chefscollaborative.org/about/ (last visited Apr. 1, 2010).[/tippy] The group’s manifesto demands that government ensure food originates in a place “with unpolluted air, land, and water, environmentally sustainable farming and fishing, and humane animal husbandry”–a statement that indicates the need for drastic and expensive measures taken by at least a half-dozen federal agencies. [tippy title=�″ header=”off”]Id.[/tippy]

    Still, it would be unfair to peg (or credit) Waters as the sole force behind California’s propensity to ban or curtail certain foods or agricultural practices. A slew of other factors likely also contribute to the leftist, pro-regulatory food climate in California.

    From 1930 to 1960, the majority of immigrants to California from other American states identified as New Deal Democrats, and eventually outnumbered the state’s “old Republicans.” [tippy title=�″ header=”off”]See James G. Gimpel & Jason E. Schuknecht, Patchwork Nation 84 (2004).[/tippy] Those immigrating to California from elsewhere in the United States since 1960, like the New Deal immigrants before them, identified with the political left. These new immigrants, often “hippies,” tended to migrate to California not because of the state’s economic promise but to escape “restrictive moral codes” elsewhere in the country. [tippy title=�″ header=”off”]Id. at 61.[/tippy] But while these immigrants opposed the moral restraints imposed upon them in their hometowns in the American South, the Midwest, and on the East Coast, many soon saw fit to codify their own moral codes in their adopted home of California. [tippy title=�″ header=”off”]Id. There is nothing particularly novel about an immigrant population gaining power and, in so doing, transforming from oppressed to oppressor. In the 1600s, Puritans escaped persecution in England by immigrating to America. Once in this country, they gained power and proceeded to persecute each other and those unlike them. U.S. State Dept., Outline of U.S. History 13 (2005).[/tippy]

    Several factors contributed to this shift. During the 1960s, after the release of Rachel Carson’s apocalyptic Silent Spring, [tippy title=�″ header=”off”]See generally Rachel Carson, Silent Spring (First Mariner Books 2002) (1962) (launching what became known as the “environmental movement” in a book that details alleged harms caused by manmade pesticides).[/tippy] the issue of environmentalism ballooned in importance. California was an early adopter of so-called “green” regulations, in large part because Californians sought to “protect . . . the resources . . . of the nation’s loveliest landscapes.” [tippy title=�″ header=”off”]Joel Kotkin, Death of the Dream, Newsweek, Mar. 2, 2009, at 36, 38.[/tippy] In fact, California has been the nation’s leading environmental regulator since at least the 1970s. [tippy title=�″ header=”off”]See, e.g., Vogel, supra note 145 at 6.[/tippy] This rising tide of environmentalism in California coincided with an increasing interest in vegetarianism, [tippy title=�″ header=”off”]See Karen Iacobbo & Michael Iacobbo, Vegetarian America 169-94 (2004) (describing the vegetarian movement in America in their chapter, “Peace, Love, and Vegetarianism: The Counterculture of the 1960s and 1970s”).[/tippy] a movement also centered in the state, [tippy title=�″ header=”off”]See id. at 170-73.[/tippy] and in animal rights. [tippy title=�″ header=”off”]Id. at 172.[/tippy] The free-speech movement, the first large-scale example of student activism, was launched in Berkeley in the 1960s–a fact Alice Waters herself notes in tracing her inspiration for California cuisine. [tippy title=�″ header=”off”]See Interview by Charlie Rose, supra note 208.[/tippy] Farm workers also organized during this period to fight perceived exploitation in California. Their efforts, led by organizer Cesar Chavez, formed what would become the United Farm Workers of America, the first farm workers’ union in the country. [tippy title=�″ header=”off”]See National Chavez Center, About Cesar E. Chavez, http://www.nationalchavezcenter.org/main.html (last visited Apr. 1, 2010).[/tippy]

    As they aged, many of the post-New Deal leftists who immigrated to the state–and subscribed to these movements and supported their attendant regulatory requirements–found influential work in academia and the media, as well as in Congress and state government. [tippy title=�″ header=”off”]Levenstein, supra note 201, at 179.[/tippy] California’s crackdown on food and agriculture is thus therefore best represented as the a confluence of pro-regulatory leftism, including environmentalism, the labor-rights movement, and the animal-rights movement and the gradual transition into power of many former 1960s outsiders–along with reaction to the more recent problem of obesity.

    Perhaps the archetypal example of this phenomenon–the movement crusader turned establishment regulator–is a graying radical named Edmund G. “Jerry” Brown. [tippy title=�″ header=”off”]See Kevan Blanche, The Red Side of Brown, The Weekly Standard, Oct. 27, 2006, http://www.weeklystandard.com/Content/Public/Articles/000/000/012/858gbeyz.asp (claiming that Brown possesses an affinity for radical communist murderers like Che Guevara and Fidel Castro).[/tippy] Mr. Brown served as governor of California and mayor of Oakland, unsuccessfully sought the presidency three times, and in his current capacity as California attorney general leads the state’s Prop 65 prosecutions. [tippy title=�″ header=”off”]See Office of the Attorney General, Edmund G. Brown, Jr., http://ag.ca.gov/ag/brown.php (last visited Apr. 1, 2010) Lou Cannon, Mayor’s ‘Magic’ Turns City’s Luck Around Ex-Governor Brown and Oakland, Calif., Are Reincarnated as a Team Hard to Beat, The Washington Post, February 17, 1999, at A6. Brown’s biography supports the archetype claim, as it notes that during his time as governor he
    established the first agricultural labor relations law in the country, enacted collective bargaining for teachers and other public employees, started the California Conservation Corp (CCC), signed into permanent law the California Coastal Protection Act, earned federal protection of Northern California wild and scenic rivers, brought about the country’s first building and appliance energy efficiency standards and made California the leader in solar and alternative energy.
    Id.[/tippy] Another stellar example of the phenomenon is Tom Hayden, an ex-husband of actress Jane Fonda. Hayden, who was a founding member of the 1960s radical anti-establishment student group Students for a Democratic Society, went on to spend a decade in the California state legislature where he championed animal rights and environmental causes. [tippy title=�″ header=”off”]See, e.g., Biography, Tom Hayden, http://www.tomhayden.com/biography/ (last visited Apr. 1, 2010).[/tippy]

    B. California Regulations May Not be Achieving Stated Goals and also Raise Concerns About Quality, Quantity, Freedom, and Prosperity

    There are several arguments against California’s “blunt-instrument approach” [tippy title=�″ header=”off”]See Douglas Glen Whitman & Mario J. Rizzo, 2 N.Y.U. J. L. & Liberty, 411, 443 (2007).[/tippy] to food and agriculture regulation. California’s crackdown threatens the quality and quantity of food available in California and across the United States, impedes culinary and agricultural advancement, encumbers economic freedom, hinders prosperity, and raises constitutional concerns.

    California’s assault on food and agriculture has a negative impact on what and how we eat. The crackdown is bad for the state’s farmers, entrepreneurs, and consumers. The state’s burgeoning attack on raw milk harms farmers and consumers. This crackdown comes at a time when raw milk is increasing in popularity in the state and across the country. [tippy title=�″ header=”off”]Sharon Kiley Mack, Popularity of Raw Milk Growing Product Commands $4.50-$10 a Gallon, Bangor Daily News (Maine), Aug. 1, 2008, at A1.[/tippy] Prop 65, meanwhile, harms businesses that sell a host of healthy foods like chicken, olives, and bread, forcing them to warn consumers about the infinitesimal danger of eating otherwise healthful foods. [tippy title=�″ header=”off”]Prop 65 requires a food seller to post a warning unless it can demonstrate a food containing acrylamide would cause “not more than one additional cancer case (beyond what would otherwise occur) in a population of 100,000 people consuming the food over a lifetime.” Proposition 65 in Plain Language!, supra note 110.[/tippy] Even acrylamide levels in less healthy foods are unlikely to cause cancer. One group estimates that, in order to contract cancer from consuming acrylamide, “a person of average weight would have to eat over 62 pounds of chips or 182 pounds of fries, every day, for his or her entire life.” [tippy title=�″ header=”off”]Center for Consumer Freedom, The Dose Makes the Poison, May 15, 2006, http://www.consumerfreedom.com/article_detail.cfm/article/176.[/tippy] In fact, virtually anything we eat can conceivably cause cancer, including fruits and vegetables, [tippy title=�″ header=”off”]See Robin McKie, Research Links Cancer to Fruit and Vegetables, The Observer, Feb. 17, 2002, at 9 (warning that fruits and vegetables that are treated with fertilizer may cause cancer).[/tippy] but the positive health effects of many foods far outweigh any perceived harm eating these foods might cause.

    In the case of foie gras, California’s ban could have a far-reaching and dramatic impact on what Americans eat that extends well beyond the targeted food. The Humane Society of the United States, an animal-rights group involved in securing passage of the California ban, recently argued not just that foie gras is the result of the allegedly cruel process of gavage but also that it is a “diseased” product that cannot legally be sold in the United States. [tippy title=�″ header=”off”]See Anthony Ramirez, Citing Treatment of Fowl, Groups Urge State to Ban Foie Gras, N.Y. Times, June 22, 2006, at B3 (“[The Humane Society] want[s] foie gras declared an ‘adulterated’ food within the meaning of Article 17, Section 200 of the [New York State] Agriculture and Markets Law.”).[/tippy] Their argument concerns the swollen livers of foie gras fowl. While foie gras may not frequently be consumed in this country, this “diseased” argument could, if accepted by either state or federal government, have a dramatic impact on one food that is widely eaten in America: beef. Why? Most beef cattle in the United States are–like foie gras ducks–fed a diet of corn. Cows do not eat corn in nature. Because eating corn can cause cattle to experience severe gastric distress, most cattle are also fed antibiotics, which permit a cow to eat corn without the attendant gastrointestinal impact. [tippy title=�″ header=”off”]See generally Pollan, supra note 182 (describing in great detail the antibiotics consumed by corn-fed American beef cattle).[/tippy] If the Humane Society of the United States were to succeed in having foie gras classified as a “diseased” food, that success might open the door to banning corn-fed beef–which, after all, is treated with antibiotics–as a “diseased” food. [tippy title=�″ header=”off”]Incidentally, a divergent argument can be made that corn-fed beef is not Kosher under Jewish dietary laws. To be Kosher, an animal must “chew the cud,” meaning it must swallow, partially digest, and regurgitate its food before finally digesting it. Leviticus 11:3-8. The animal also must have cloven hooves. Id. Cows do chew the cud when eating their natural diet of grass but, notes author Michael Pollan, “they can’t chew their cud when they’re on corn.” Cf. Interview, Michael Pollan, Frontline, available at http://www.pbs.org/wgbh/pages/frontline/shows/meat/interviews/pollan.html (last visited Apr. 1, 2010). Thus, if Pollan is correct, cows fed corn do not “chew the cud” and, impliedly, their meat may not be Kosher.[/tippy]

    The crackdown also threatens California’s place as America’s culinary innovator and agricultural engine. California is slowly squeezing the life out of its cuisine via a series of assaults committed from farm to table. The state is banning everything from haute cuisine like foie gras to the everyman meals served by the state’s brilliant street vendors, from agricultural practices like caging hens to culinary practices like cooking with trans fats. As one commentator notes, “[t]he regime of personal prohibition can be stifling.” [tippy title=�″ header=”off”]Harvey Rishikof, Long Wars of Political Order–Sovereignty and Choice: The Fourteenth Amendment and the Modern Trilemma, 15 Cornell J.L. & Pub. Pol’y 587, 617 (2006).[/tippy]

    California’s food crackdown is also bad for consumers across America. The California effect has meant that the state’s food regulations and bans extend far beyond its borders, either because its regulations or bans encourage other states or the federal government to adopt them, or because they force producers to change their offerings nationwide, or because they force the regulated industry to seek preemptive nationwide regulation. The result has been nationwide organic laws that are panned by organic advocates the likely imposition of nationwide uniform menu-labeling standards and dozens of discordant state laws battling the imagined scourge of trans fats. Evidence these bans and regulations actually encourage healthier eating is scant, which is why scholars like Brian Wansink note that these and similar regulations have had no discernable impact on obesity. [tippy title=�″ header=”off”]See Baylen Linnekin, supra note 96.[/tippy]

    California’s crackdown on food raises other serious economic concerns for its residents, for the state, and for the nation. The exorbitant increases in the state’s beer and wine taxes will cost thousands of jobs in California. One estimate indicates that Prop 2 could result in the elimination of most of the California egg industry and the loss of thousands of jobs, which could cost the state more than $370 million in gross sales and resulting tax receipts. [tippy title=�″ header=”off”]See generally Daniel A. Sumner, supra note 70.[/tippy] In addition to unemployment and reduced tax revenue, these regulations will increase prices for alcohol beverages and eggs in California. Because California exports wine and eggs, Americans will also pay higher prices for these goods because of California’s regulations.

    Finally, California’s food regulations and bans are an ineffective and wrongheaded means of dealing with real and imagined problems. California’s ban on caged hens will do little more than shift jobs (and hens) from California to other states. Prop 65 casts such a wide net that Californians are subject to warning fatigue. Even the state admits that Prop 65 warnings are ubiquitous. [tippy title=�″ header=”off”]See Acrylamide and Proposition 65, supra note 110 (“Proposition 65 warnings are common throughout California.”).[/tippy] The state’s efforts to curb childhood obesity in schools are also not working. Los Angeles, the city that first tried to ban soda from schools, was recently found to be in violation of its own regulations concerning the sale of soda and brownies on campus. [tippy title=�″ header=”off”]See Mary MacVean, Schools Violate Junk Food Ban, L.A. Times, May 9, 2009, at A9.[/tippy] While decent people may disagree whether legislation is a path for arresting the very real obesity problem, [tippy title=�″ header=”off”]Compare Baylen Linnekin, supra note 96 (quoting Prof. Brian Wansink for the proposition that legislation to combat obesity has not been proven effective), and Harsanyi, supra note 98 at 53-55 (declaring that legislation has no impact on obesity rates), with Benjamin Montgomery, Note, The American Obesity Epidemic: Why the U.S. Government Must Attack the Critical Problems of Overweight and Obesity Through Legislation, 4 J. Health & Biomed. L. 375, 404 (2008) (calling for sweeping “wellness” legislation to counter obesity).[/tippy] recent research by the independent RAND Corporation indicates that the presence of so-called junk food in schools has “no statistically or economically significant effect” on body mass, a key indicator of obesity. [tippy title=�″ header=”off”]See Ashlesha Datar & Nancy Nicosia, Junk Food in Schools and Childhood Obesity: Much Ado About Nothing? 5 (RAND Corporation, Working Paper No. 672, 2009).[/tippy] The RAND study did note that such bans do have an impact on school budgets–and a negative one at that–since monies raised by food sales go into school coffers. [tippy title=�″ header=”off”]See generally id.[/tippy]

    C. California Regulations Raise Constitutional Concerns

    1. The Dormant Commerce Clause

    The Dormant Commerce Clause, an implied provision of the federal Constitution, bars local and state governments from “restrict[ing] trade in a way that ultimately impacts interstate commerce[,] even when the intention of the political entity enacting the law is to effect a change solely within the boundaries of its particular jurisdiction.” [tippy title=�″ header=”off”]See Alexandra R. Harrington, Not All it’s Quacked up to Be: Why State and Local Efforts to Ban Foie Gras Violate Constitutional Law, 12 Drake J. Agric. L. 303, 317 (2007).[/tippy] The Illinois Restaurant Association argued, in challenging Chicago’s foie gras ban in 2006, that the city’s ban violated the Clause. [tippy title=�″ header=”off”]Ill. Rest. Ass’n. v. City of Chicago, 492 F. Supp. 2d 891 (N. D. Ill. 2007).[/tippy]

    The crux of the plaintiffs’ Dormant Commerce Clause argument was twofold. First, they argued that Chicago’s ordinance was effectively an “economic boycott” against foie gras producers located outside the state. [tippy title=�″ header=”off”]Id. at 899.[/tippy] Second, they claimed the ordinance did not have the requisite local benefit that a law must have to overcome a Dormant Commerce Clause challenge. [tippy title=�″ header=”off”]Id.[/tippy] The court disagreed on both counts, holding that because the Chicago ban did “not govern foie gras production,” and had some local benefit in terms of animal rights, it did not overstep the bounds of the Dormant Commerce Clause. [tippy title=�″ header=”off”]See id.[/tippy] The difference in the case of the California ban is that the state targets producers and consumers outside and inside the state. Whether these differences would be sufficient for a court to determine that California’s ban violates the Dormant Commerce Clause is unclear, especially given that the “local effect” requirement may be fulfilled because of California’s in-state production. However, since the decision in Illinois Restaurant Ass’n, commentators have opined that bans such as those enacted in Chicago and California do indeed violate the Dormant Commerce Clause. [tippy title=�″ header=”off”]See, e.g., Harrington, supra note 242 and accompanying text.[/tippy] They argue that the Chicago and California foie gras bans do illegally interfere with interstate commerce while offering “no prescient public health, safety, or moral justification . . . that would withstand judicial scrutiny.” [tippy title=�″ header=”off”]Id. at 318.[/tippy] If this is the case, then the foie gras ban and many of California’s other bans–including those pertaining to egg-laying hens genetically modified crops and fish and trans fats–may also violate the Clause. Furthermore, California restrictions on agriculture may present an even more compelling Dormant Commerce Clause case because the state ships the vast majority of its crops to other U.S. states, and accounts for the vast majority of America’s fruit, vegetable, and nut exports. [tippy title=�″ header=”off”]See supra notes 21-23 and accompanying text. California’s bans may also violate the Privileges and Immunities Clause of the Fourteenth Amendment, which bars states from “mak[ing] or enforc[ing] any law which shall abridge the privileges or immunities of citizens of the United States.” U.S. Const. amend. XIV. The Clause was effectively written out of the Constitution in 1873 with the Supreme Court’s holding in the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873). An effort is currently underway, in McDonald v. Chicago, heard by the Court this term, to revive the Clause. McDonald v. Chicago, 567 F.3d 856 (7th Cir. 2009), cert granted, 77 U.S.L.W. 3691 (U.S. Sept. 30, 2009) (No. 08-1521).
    Proponents argue that the Clause exists at least in part to protect economic liberties, including the right to pursue a given trade. See Robert A. Levy, How Gun Litigation Can Restore Economic Liberties, 31 Cato Pol’y Rpt. 2 (2009). In the Slaughter-House Cases, which concerned the economic rights of meat butchers, the Court “ruled that the law was a valid public health measure and did not violate the right of butchers ‘to exercise their trade.”’ Id. A Court decision this term to revive the Clause could seemingly spell the end of California’s foie gras ban, among other California regulations, since the ban is after all a public morals measure that concerns the rights of fowl farmers and butchers to exercise their trade.[/tippy]

    2. Do California’s Bans and Regulations Interfere with a Fundamental Right to Food Freedom?

    The Supreme Court has never recognized an explicit right to eat certain foods. However, several Court justices have recognized a negative right [tippy title=�″ header=”off”]See, e.g., Cass R. Sunstein, Free Speech Now, in The Bill of Rights in the Modern State 273 (Geoffrey R. Stone, Richard A. Epstein, & Cass R. Sunstein eds., 1992) (describing a “negative” rights argument as the “right to protection against the government, not to subsidies from the government”).[/tippy] to food. Justice William O. Douglas wrote, in dictum, that the Ninth Amendment guarantee of unenumerated fundamental rights [tippy title=�″ header=”off”]U.S. Const. amend. IX.[/tippy] includes “one’s taste for food . . . [which] is certainly fundamental in our constitutional scheme–a scheme designed to keep government off the backs of people.” [tippy title=�″ header=”off”]See Olff v. E. Side Union High Sch. Dist., cert. denied, 404 U.S. 1042, 1044 (1972) (Douglas, J., dissenting) (likening a fundamental right to wear one’s hair in a certain style to one’s fundamental right to eat certain foods or enjoy certain cultural pursuits).[/tippy] Other Justices have come out against food bans. Justice Stephen Field argued that a right to make and procure food is an integral fundamental right of all Americans. [tippy title=�″ header=”off”]See Powell v. Pennsylvania, 127 U.S. 678, 690 (1888) (Field, J., dissenting) (“[T]hat the gift of life was accompanied with the right to seek and produce food, by which life can be preserved and enjoyed, in all ways not encroaching upon the equal rights of others…. is an element of that freedom which every American citizen claims as his birthright.”) (emphasis added).[/tippy] Field called this right an essential element of liberty. [tippy title=�″ header=”off”]Id. at 692 (“The right to procure healthy and nutritious food… is among these inalienable rights, which, in my judgment, no State can give and no State can take away except in punishment for crime.”).[/tippy] Importantly, Field distinguished between food regulation and food bans, contrasting the former, which he called a reasonable exercise of state police power, with the latter, which he would proscribe as unconstitutional. [tippy title=�″ header=”off”]Id. at 699 (favoring a state’s right to regulate food, but equating the prohibition of a food with an unconstitutional confiscation).[/tippy] More recently, Justice Antonin Scalia, also in dictum, said the Court need not recognize a right to starve oneself to death in order to protect the “right to eat.” [tippy title=�″ header=”off”]See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 883, 980 at n.1 (1992) (Scalia, J., dissenting) (“It drives one to say that the only way to protect the right to eat is to acknowledge the constitutional right to starve oneself to death.”).[/tippy]

    Proponents of California’s attack on food and agriculture paint the regulations that comprise it and the resultant California effect as a desirable “race to the top.” But California’s crackdown does not achieve its stated goals–whether the goal is ensuring a minimum level of quality combating obesity or protecting animals or consumers. The crackdown certainly does nothing to aid entrepreneurship or innovation. The result of the state’s regulations and bans has not been that Californians or Americans eat “healthier” or “better” as those terms are defined by the crackdown’s advocates.

    When it comes to regulation, harsher does not mean better. The race to regulate is not a race to betterment. Ubiquitous and pervasive regulations might themselves be evidence of little more than the existence of “a race to the strictest standard.” [tippy title=�″ header=”off”]Shayna M. Sigman, Kosher Without Law: The Role of Nonlegal Sanctions in Overcoming Fraud Within the Kosher Food Industry, 31 Fla. St. U. L. Rev. 509, 533 (2004) (emphasis in original) Raymond B. Ludwiszewski & Charles H. Haake, Cars, Carbon, and Climate Change, 102 Nw. U. L. Rev. 665, 672 (2008).[/tippy] Vogel recognizes the drawbacks of the “California effect,” noting that while economic liberalization and strict regulations can be compatible, [tippy title=�″ header=”off”]Vogel, supra note 145 at 255.[/tippy] he is careful “not to equate stricter standards with more effective regulations.” [tippy title=�″ header=”off”]Id. at 7.[/tippy] Vogel writes that stricter regulations often “contribute little or nothing” toward their stated goals, and that overturning regulations often benefits the public. [tippy title=�″ header=”off”]Id.[/tippy]

    Where does the pervasive spread of California’s bans and regulations point America’s food future? On the one hand, California’s mushrooming food and agricultural regulations and bans–the result of the state’s propensity toward hyper-regulation and the resultant California effect–are spreading across America. On the other hand, if these bans and strict regulations are bad for California, then their proliferation is also bad for America.

    The many people who claim a food revolution is afoot in America today [tippy title=�″ header=”off”]See, e.g., Martin, supra note 206 at SundayBusiness 1. See also Jamie Oliver, Jamie Oliver’s Food Revolution, http://www.jamieoliver.com/campaigns/jamies-food-revolution (last visited Apr. 1, 2010).[/tippy] are probably correct. But revolutions and revolutionaries have tried before to create top-down, small-farm agrarian utopias and to regulate nearly every aspect of human dining and existence. [tippy title=�″ header=”off”]See, e.g., Dan Fletcher, A Brief History of the Khmer Rouge, Time, Feb. 17, 2009, available at http://www.time.com/time/world/article/0,8599,1879785,00.html (describing the history of the murderous Khmer Rouge, whose leader Pol Pot’s attempts to effect “a radical shift to an agrarian society” resulted in the death of millions of Cambodians).[/tippy] What these societies managed to do instead was to create poverty and famine.

    There is an alternative to the vision shared by California regulators, Alice Waters, and their allies. That alternative is food freedom–the right of people to grow, buy, sell, cook, and eat whatever foods they want, free from oppressive government intervention. For people who love and care about food and choice, who want to keep food legal, and who enjoy buying, cooking, raising, and eating a variety of foods, only the latter option will suffice.


    PETA Sics Cops on California Foie Gras Dinner

    Patrick Fallon/REUTERS/Newscom

    Earlier this week, a small salumeria in Nevada City, California, was forced to cancel a foie gras-themed dinner after PETA, the animal rights group, sicced the local police on the popular local retailer.

    The Ham Stand, which specializes in house-made sausages, cured and smoked meats, sandwiches, and other fare, opened last year in Nevada City, about an hour's drive west of the Nevada border. It's gathered positive reviews on Yelp and elsewhere.

    The Ham Stand marketed the foie gras dinner on its Facebook page and elsewhere. The dinner menu, which I tracked down here, was to include a trio of foie gras appetizers and a seven-course foie gras tasting menu.

    A PETA spokesperson says the group learned about the dinner and contacted the Nevada City police, leading to the dinner's cancellation and a police visit to The Ham Stand.

    (Jason Jillson, owner of The Ham Stand, quibbles with PETA's claim that their actions caused the dinner to be cancelled. "I cancelled the dinner the day before the authorities showed up due to lack of interest, contrary to what PETA had to say," Jillson told me this week.)

    PETA bragged about its actions in a press release, reminding readers that the group opposes human consumption of not just foie gras, but of any animals whatsoever. "[A]nimals are not ours to eat," the group declared in its statement. (Instead, I guess animals are for all these other animals to eat.)

    "PETA hopes that the Nevada City Police Department's swift action will inspire kind people across the state to blow the whistle on any would-be foie gras peddlers," the PETA release adds.

    Rather than inspiring others, though, PETA's tattletaling appears to be part of a concerted effort on the part of animal rights groups to harass California restaurateurs and food sellers. The San Francisco Chronicle reported this week that the Animal Legal Defense Fund (ALDF), another animal rights group, says it recently sent foie gras warning letters to several Bay Area restaurants and the San Francisco Police Department. The Chronicle also reports the ALDF warnings "may be [based on] inaccurate or outdated" information.

    I reached out this week to Jillson, owner of The Ham Stand, to learn if he intended for The Ham Stand dinner to serve as a protest of California's foie gras ban. Jillson told me by phone and email that he didn't.

    (There's certainly precedent for a multi-course foie gras dinner in a place where doing so may violate the law. I attended a protest dinner in Chicago in 2007, during the period when that city foolishly banned foie gras, and wrote all about the nine courses of foie gras I ate in delicious protest.)

    "I did it to use up product I had on hand," Jillson tells me. "I legally acquired it from Sonoma Saveur. I bought it before the Supreme Court decision, when it was still legal. Foie gras is not the draconian thing it used to be."

    California passed its first-and-only-state-in-the-nation foie gras ban—an embarrassing outlier I've written about time and again—in 2004.

    I wrote an amicus brief to the U.S. Supreme Court last year, on behalf of Reason Foundation (which publishes Reason) and the Cato Institute, in support of ending the foie gras ban. In January, as I discussed here, the Supreme Court chose to leave the foie gras ban in place for the time being, while the case winds its way through the lower courts.

    Though California's foie gras ban is a farce, that doesn't mean it lacks punitive effect. As Eater noted recently, those who resist the ban could face prosecution and thousands of dollars in fines. All for serving foie gras, which is legal to sell and eat in every other state in the nation.

    Yes, I've eaten my share of foie gras. But I've also defended the rights of vegan groups and others when government unconstitutionally restricts their rights in favor of meat producers. That's because the constitution protects every person's right to eat meat or vegetables or some combination thereof. California's foie gras ban is abhorrent not because foie gras is tasty to me and others, but because it violates our rights. It's a case about freedom generally and food freedom specifically, not foie gras.

    Vegans, by definition, must avoid eating animals. For the rest of us, animals should be ours to eat if, when, and where we wish.

    Reason Foundation Senior Fellow Baylen Linnekin is a food lawyer, scholar, and adjunct law professor, as well as the author of Biting the Hands That Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable (Island Press 2016).

    Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

    I once started a campaign to get the local pound to actually feed dogs they were caring for. They were literally starving them to death and as a dog trainer who helped out at adoption events, I thought it was disgusting. A PETA attorney somehow found out about it and friended me thinking I was some kind of animals rights activist. That gave me a small glimpse into that sick, twisted organization. They have no respect for human life or animal life for that matter. They are just sick, violent, murderous people.

    On the flip side, the city tried to set up a sting to have me arrested for “filing a false police report” but I was tipped off by someone who actually was arrested and didn’t go down to report the abuse. Those were fun times.

    So the cops were fixin’ to arrest your ass for filing a false police report even though you were legitimately concerned for the welfare of some dogs that were being starved by the city? That’s government, folks.

    Totes legit. Here’s a fun article that gives some insight into the workings of the City of Houston. I would like to think that it has changed but I moved on to training dogs for competition and got as far away from rescuers and the pound as I could.

    Yikes. Knowing that’s how these things work in general doesn’t make it any easier to read the proverbial punch in the gut when it finally does make the news. I know there are so many cases and (perhaps cynically) I feel like that one was only considered for reporting because of the potential race issue, which would generate clicks. The assholes manage to be accountable to noone. Unelected bureacrats seem like untouchable bureacrats more and more, with the clever distraction of identity grievances being used to obfuscate the bigger picture which is the tyranny and corruption of local and state governments, never mind Federal.

    They get big heads because their degree with a GPA of 2.7 from a small state college plus some connection got them a government job barely in the six figure range and they think they have more power than they actually have. Stupid people who have a little bit of power are some of the scariest people and government is full of them.

    Volunteers at BARC actually sued the city over banning volunteers and won. I can’t remember the details but basically, a volunteer who is a whistle blower has some protections.

    I moved on to training dogs for competition and got as far away from rescuers and the pound as I could.

    I grok you. My experience teaching would probably had turned out better if I had taught in a school where everyone expected the students to learn job skills instead of a Brooklyn government run school.


    Biden and Harris are good for animal welfare

    Joe Biden and his family live with a couple of German shepherds, Champ and Major. So there will be a dog in the White House again which is obviously a good thing. Trump was the first president in a 100 years not to have a dog in the White House. I sense that Trump doesn’t like animals that much and his sons like to trophy hunt in Africa. There is a horrible picture of them on the Internet of a giant leopard that they had shot. Not a great look or endorsement for their father on animal welfare issues. The Trump administration removed wolves from the US’s endangered list, saying the species had made a “successful recovery”. Trump tended to support the shooting of animals for entertainment rather than their protection (he supports the shooting lobby). For me it is great news that he’s lost the presidency (barring any crazy upset).

    Biden and Harris. I have lifted this nice photograph from the Humane Society Legislative Fund website.

    In stark contrast, the Joe Biden and Kamala Harris team have a bit of pedigree when it comes to a sensitivity towards animals and their welfare. This is what animal advocates like and I hope we will see advances in animal welfare and rights during Joe Biden’s presidency and Kamala Harris’s vice presidency.

    Sara Amundson, the President of the Humane Society Legislative Fund, endorsed Biden and Harris on October 6 describing them as “good faith actors in sponsoring and supporting animal protection legislation and policies through the years”. As an aside, we have to at least give president Trump the credit for signing the Preventing Animal Cruelty and Torture Act and his support for other measures. Despite that little blip of positivity concerning animal welfare, the Trump presidency is not associated with progress on animal welfare. The Humane Society Legislative Fund website sums up Trump’s presidency in respect of animal welfare by saying, “key federal agencies under the Trump administration have been the source of genuine misery to animals. Worse, these agencies continue to threaten hard-one animal protection gains…”. A classic retrograde step was Trump’s endorsement of rules allowing the shooting of bears and their cubs in their dens in Alaska. Madness.

    It’s time for change and the Biden, Harris team will hopefully effect that change and take the country in a more productive direction concerning animal welfare. Kamala Harris, as you probably know, is a former practising lawyer and held the position of California’s Attorney General. She has held fossil fuel companies and car manufacturers accountable for their misdeeds. Her record on animal rights interest me. She supported California’s bans on battery cages, shark finning and the production and sale of foie gras. She co-sponsored laws which combat horse soring and which makes animal abuse a felony. She introduced the Help Extract Animals from Red Tape (HEART) Act. She also helped introduce Sen. Booker’s Safe Line Speeds during Covid-19 Act which helps to protect animals and workers from dangerous line speeds in slaughterhouses. In short, she has a record of fighting for animal rights.

    On Twitter she has tweeted that dogs are welcome in her office and clearly indicated that she likes dogs although she does not have a pet at the moment.

    Dogs are always welcome in my Senate office – here are a few paw-licy advisors who regularly stop by. #NationalPetDay pic.twitter.com/vVbriFTlg5

    &mdash Kamala Harris (@SenKamalaHarris) April 11, 2019

    Please note that sometimes embedded videos like the one above can stop working overtime for various reasons. I have no control over this and if it has stopped working I apologise.

    The only minor downside for me is that both Biden and Harris don’t live with companion cats or a cat. But cat lovers can’t have it all ways. At least we have a couple of people in the White House who are concerned about animal welfare and I hope that this extends to wider, international issues such as trade in wildlife, trophy hunting and global warming (which is harming wildlife). I would like them to tackle the unpleasant issue of the cat and dog fur industry in China. It needs to be stopped. Will Biden be tough on China as Trump was? I hope so.

    Hi, I'm a 72-year-old retired solicitor (attorney in the US). Before qualifying I worked in many jobs including professional photography. I have a girlfriend, Michelle. I love nature, cats and all animals. I am concerned about their welfare. If you want to read more click here.


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    Morning Docket: 05.07.12

    * While Dewey’s former culture gets roasted on a spit, and the seemingly unending drama gets turned into a montage of living lawyer jokes, we’re still waiting for the final punchline. [New York Times Wall Street Journal]

    * Don Verrilli tried so hard, and got so far (depending on who you ask), but in the end, it doesn’t even matter. When Linkin Park lyrics apply to your oral argument skills, you know you’re kind of screwed. [New York Times]

    * The 9/11 arraignments went off without a hitch this weekend. And by that, we mean that it was a 13 hour hearing filled multiple interruptions, and grandstanding about “appropriate” courtroom fashion. [Fox News]

    * In a “re-re-reversal,” Judge Jerry Smith, on a three-judge panel of the Fifth Circuit, reinstated Planned Parenthood’s injunction against Texas, without even so much as a homework assignment. [Dallas Observer]

    * The It Gets Worse Project: if you thought that the Law School Transparency debt figures were scary before, then take a look at them now. Six figures of debt just got a lot harder to swallow. [National Law Journal]

    * Scalia gets busted on a case of hot-dog hooking. No, not that Scalia. A woman from Long Island has been accused, for the second time, of selling swallowing foot-longs in the back of her food truck. [New York Post]

    Morning Docket: 04.26.12

    * Dewey need to take a look at the Biglaw industry in general before more firms implode? Hell yes, says an author who’s written on the economics and management of law firms. [DealBook / New York Times]

    * Wal-Mart was served with its first shareholder suit over its alleged bribery scandal, because the only thing on rollback this week is the price of the company’s stock shares. [Reuters]

    * Does diplomatic immunity give you a free pass for getting handsy with the maid? Guess we’ll see next week, when a judge rules on DSK’s motion to dismiss his civil suit. [New York Daily News]

    * As long as you’ve got money, the TSA will totally look the other way if you’ve got suitcases filled with drugs. Vibrators, on the other hand, are simply out of the question. [Bloomberg]

    * As of yesterday, Connecticut became the seventeenth state to kill the death penalty. But not so fast, death row inmates. You still get to die. Isn’t that nice? [CNN]

    * Franchise agreements be damned, because even judges can understand that sometimes, you just need to eat a delicious sandwich while you’re getting a lap dance. [KTVN]

    Morning Docket: 01.19.12

    * Occupy Wall Street supporters, please take note: this is how you stage a protest. Yesterday’s internet blackout definitely made lawmakers think twice. SOPA bill backers dropped like flies. [New York Times] * The American Bar Association may be taking baby steps toward improving the way law schools report graduate employment and salary statistics, but [&hellip]

    Meet Trademarkabilities: The Best Way To Build Up Your Trademark Law Skillset

    Morning Docket: 10.25.11

    * Cloudy with a chance of dismissal for Steve Sunshine, Sprint’s Skaddenite. During oral argument, a judge reminded him that antitrust law didn’t exist to protect competitors. [Wall Street Journal] * Oh, the things you’ll argue to get around a motion to dismiss: Dominique Strauss-Kahn’s accuser now contends that diplomatic immunity isn’t a pass for [&hellip]


    California Attorney General Seeks to Reinstate Foie Gras Ban - Recipes

    A Pima County judge has denied a venue change for the trial of a man accused of killing two young girls.

    Lawyers for Christopher Clements argued that holding the proceedings in the county would deprive him of a fair trial.

    Superior Court Judge Deborah Bernini denied the motion, stating that the county courts are more than equipped to handle both homicide cases against Clements in an orderly fashion.

    Prosecutors have already filed a notice to withdraw the death penalty in the case.

    Clements allegedly kidnapped and killed 6-year-old Isabel Celis and 13-year old Maribel Gonzalez.

    He was indicted in 2018 on 22 felony charges including first-degree murder after the remains of the two young children were found separately in a remote area of Pima County.

    Clements reportedly led law enforcement to the remains of Celis in 2017, about five years after she disappeared from her home in Tucson.

    Gonzalez’s body was found in 2014, three days after she was reported missing.

    President Joe Biden on Friday ordered a study of adding seats to the Supreme Court, creating a bipartisan commission that will spend the next six months examining the politically incendiary issues of expanding the court and instituting term limits for its justices.

    In launching the review, Biden fulfilled a campaign promise made amid pressure from activists and Democrats to realign the Supreme Court after its composition tilted sharply to the right during President Donald Trump’s term. Trump added three justices to the high court, including conservative Justice Amy Coney Barrett, who was confirmed to replace liberal Justice Ruth Bader Ginsburg just days before last year’s presidential election.

    During the campaign, Biden repeatedly sidestepped questions on expanding the court. A former chair of the Senate Judiciary Committee, Biden has asserted that the system of judicial nominations is “getting out of whack,” but has not said if he supports adding seats or making other changes to the current system of lifetime appointments, such as imposing term limits.

    The 36-member commission, composed largely of academics, was instructed to spend 180 days studying the issues. But it was not charged with making a recommendation under the White House order that created it.

    The panel will be led by Bob Bauer, who served as White House counsel for former President Barack Obama, and Cristina Rodriguez, a Yale Law School professor who served in the Office of Legal Counsel for Obama.

    The makeup of the Supreme Court, always a hot-button issue, ignited again in 2016 when Democrats declared that Republicans gained an unfair advantage by blocking Obama’s nomination of Judge Merrick Garland to fill the seat left empty by the death of conservative Justice Antonin Scalia. Then-Senate Majority Leader Mitch McConnell, a Republican, refused to even hold hearings on filling the vacancy, even though it was more than six months until the next presidential election.

    In the wake of McConnell’s power play, some progressives have viewed adding seats to the court or setting term limits as a way to offset the influence of any one president on its makeup. Conservatives, in turn, have denounced such ideas as “court-packing” similar to the failed effort by President Franklin D. Roosevelt in the 1930s.

    In the latest crackdown on Turkey’s pro-Kurdish opposition party, Turkish authorities on Wednesday stripped a prominent legislator and human rights advocate of his parliamentary seat and took a step toward disbanding the entire party.

    Omer Faruk Gergerlioglu, a lawmaker from the People’s Democratic Party, or HDP, was convicted over a 2016 social media post which the courts deemed to be terrorist propaganda. An appeals court decision confirming the conviction was read in parliament, leading to his automatic expulsion from the house. The legislator protested the move and refused to leave parliament.

    Meanwhile, an appeals court prosecutor filed a case with Turkey’s highest court, seeking the HDP’s disbandment. The HDP is accused of acting together with the banned Kurdistan Workers Party, or PKK, and with PKK-affiliated organizations, to “disrupt and destroy (Turkey’s) indivisible integrity,” according to a court statement.

    The high court needs to approve the indictment before the case against the HDP can begin. Several of HDP’s predecessors were closed down over the decades for alleged links to Kurdish rebels, but were soon re-established under different names.

    An outspoken critic of the human rights record of President Recep Tayyip Erdogan’s government, Gergerlioglu maintains that the trial against him was politically-motivated and aimed to silence him. He says he was unjustly stripped of his seat before the Constitutional Court had reviewed his case and has vowed not to leave parliament until the high court issues its decision.

    The move to expel Gergerlioglu triggered a raucous protest in the assembly hall, with HDP legislators banging on desks and accusing Erdogan’s ruling party of an assault on democracy.

    “I came here with the 90,000 votes of the people of (the northwestern province of) Kocaeli,” Gergeroglu said, addressing journalists watching the proceeding.

    “I am my party’s legislator and I am not going anywhere,” he said. HDP legislators remained in the assembly hall in a show of solidarity.

    The government accuses the HDP — the third largest party in Turkey’s parliament — of links to the PKK. Dozens of elected HDP lawmakers and mayors, including former co-chair Selahattin Demirtas, as well as thousands of members have been arrested in a crackdown on the party. Erdogan’s nationalist ally recently called for the party to be closed down.

    A judge has struck down portions of a Michigan towing law after low-income Detroit residents shared extraordinary stories of high fees and frustration about the whereabouts of their vehicles.

    The case centered on the practices of Detroit police and a towing company. The decision by U.S. District Judge Judith Levy could force changes in a law that’s viewed as favorable to the towing industry.

    Levy last week ordered Detroit to notify the state within 24 hours after police call for a vehicle to be towed. That information typically triggers a notice to the car owner.

    There was no maximum deadline to report a towed vehicle under the law, attorney Jason Katz said Wednesday.

    Vehicle owners also can ask a local court to suspend the immediate payment of towing and storage fees before they get a hearing to object to a car’s impoundment, the judge said.

    “You have an opportunity to get into court and fight it,” Katz said. “I don’t think first asking for $1,000 is fair.”

    Gerald Grays believed his car was stolen in 2016. More than two years later, he finally learned that his car had been towed. He was told he would have to pay $930 just to get a hearing in 36th District Court, according to the lawsuit.

    Levy ordered Detroit to pay $2,000 to Grays and $1,500 each to two more people. There was no immediate comment from the city Wednesday.

    While the case only involved Detroit, Levy’s decision could be applied elsewhere in Michigan, Katz said.

    State attorneys defended the law when Republican Bill Schuette was attorney general but dropped out of the case after Democrat Dana Nessel took office in 2019.

    The Supreme Court is making it harder for a multimillion-dollar lawsuit involving centuries-old religious artworks obtained by the Nazis from Jewish art dealers to continue in U.S. courts.

    The court ruled unanimously Wednesday in a case involving the 1935 sale of a collection of medieval Christian artwork called the Guelph Treasure. The heirs of the art dealers contended the sale of the works, now said to be worth at least $250 million, was done under pressure. Germany disagreed and argued that the case did not belong in the American legal system.

    The justices said the heirs had not at this point shown that federal law allowed them to bring their case in U.S. courts. The court sent the case back for additional arguments.

    Because of that ruling, the Supreme Court also sent a similar case involving a group of Hungarian Holocaust survivors back to a lower court. They were seeking to be compensated for property taken from them and their families when they were forced to board trains to concentration camps.

    The Arizona Supreme Court on Tuesday upheld a lower court decision dismissing the last in a series of challenges that sought to decerify Democrat Joe Biden’s victory in the state.

    The high court ruling is the second time the majority-Republican court has turned aside an appeal of a court loss by backers of President Donald Trump seeking to overturn the results of the election. In all, eight lawsuits challenging Biden’s Arizona win have failed. It comes the day before a divided Congress is set to certify Biden’s victory.

    Tuesday’s ruling from a four-judge panel of the high court agreed with a trial court judge in Pinal County that plaintiff Staci Burk lacked the right to contest the election. That’s because she wasn’t a registered voter at the time she filed her lawsuit, as required in state election contests. Both courts also agreed that she made her legal challenge too late, after the five-day period for filing such an action had passed.

    Burk said in her lawsuit that she was a qualified Arizona voter, but officials said they discovered she wasn’t registered to vote. She later said she mistakenly thought “qualified electors” were people who were merely eligible to vote, and that her voter registration was canceled because election workers were unable to verify her address.

    The Supreme Court said the fact that she wasn’t a registered voter was fatal to her ability to file an election challenge and that Burk admitted she knew she wasn’t registered.

    “There is nothing before the Court to indicate that Appellant timely contacted the appropriate authorities to correct any problems with her voter registration,” Chief Justice Robert Brutinel wrote. “An election challenge . is not the proper vehicle to reinstate voter registration.”

    Biden won the state over Republican President Donald Trump by more than 10,000 votes and the results were certified last month.

    The lawsuit brought by Burk, who isn’t a lawyer but represented herself, is nearly identical to a lawsuit dismissed in early December in federal court in Phoenix.

    Burk’s lawsuit alleged Arizona’s election systems have security flaws that let election workers and foreign countries manipulate results. Opposing attorneys said the lawsuit used conspiracy theories to make allegations against a voting equipment vendor without any proof to back up claims of widespread election fraud in Arizona.

    No evidence of voter or election fraud has emerged in Arizona. Despite that, Republicans who control the Legislature are pushing to review how Maricopa County, the state’s most populous, ran its election. Two subpoenas issued by the state Senate seeking an audit and to review voting machines, ballots and other materials are being challenged by Maricopa County.

    Two of the failed legal challenges focused on the use of Sharpies to complete ballots were dismissed. Another lawsuit in which the Trump campaign sought inspection of ballots was dismissed after the campaign’s lawyer acknowledged the small number of ballots at issue wouldn’t have changed the outcome.

    A judge dismissed a lawsuit in which the Arizona Republican Party tried to determine whether voting machines had been hacked.

    Then a separate challenge by Arizona GOP Chairwoman Kelli Ward was tossed out by a judge who concluded the Republican leader failed to prove fraud and that the evidence presented at trial wouldn’t reverse Trump’s defeat. The state Supreme Court upheld that decision in an earlier ruling.

    And a federal judge dismissed a lawsuit by conservative lawyer Sidney Powell, who alleged widespread election fraud through the manipulation of voting equipment. Burk’s lawsuit repeated some of Powell’s allegations word-for-word.

    A late-term maneuver by President Donald Trump to use lower drug prices paid overseas to limit some of Medicare’s own costs suffered a legal setback Wednesday that appears likely to keep the policy from taking effect before the president leaves office.

    U.S. District Judge Catherine C. Blake in Baltimore issued a nationwide injunction that prevents the Centers for Medicare and Medicaid Services, or CMS, from carrying out the so-called “most favored nations” rule as scheduled on Jan. 1. The judge wrote in her temporary order that CMS had failed to follow required procedures for notice and comment before imposing such sweeping changes.

    The Trump regulation would tie what Medicare pays for certain drugs administered in a doctor’s office to the lowest price paid among a group of economically advanced countries. It would apply to 50 medications that account for the highest spending under Medicare’s “Part B” benefit for outpatient care.

    That group includes cancer drugs and other medications delivered by infusion or injection. Trump announced his new policy at the White House before the Thanksgiving holiday, saying, “the drug companies don’t like me too much. But we had to do it.”

    A coalition of groups including the Association of Community Cancer Centers and the Pharmaceutical Research and Manufacturers of American quickly sued to block the rule. Some opponents have likened the Trump policy to a form of socialist price controls.

    Blake wrote that the plaintiffs had established a reasonable likelihood their arguments accusing the administration of cutting corners in a rush to regulate would carry the day in a trial. Federal law says that government agencies must provide adequate opportunity for affected parties to comment on proposed regulations. The administration had sought to use emergency authority as a work-around.

    The case is hardly trivial, the judge said. “This case deals with a regulation that would for the first time implement the use of a price control mechanism not provided for by Congress,” Blake wrote.

    The Health and Human Services department said it is reviewing the ruling, and had no immediate comment.

    Trump came into office accusing drug companies of “getting away with murder” and promising to slash costs for American patients. But his administration was unable to drive major drug pricing legislation through Congress.

    Even if the Trump rule is ultimately blocked, the idea of using international prices to lower costs for Americans is very much alive. It’s at the heart of House Speaker Nancy Pelosi’s legislation to empower Medicare to negotiate drug prices. And President-elect Joe Biden also supports the approach.

    Blake was nominated to be a U.S. district judge by former Democratic President Bill Clinton.

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