A New York state appeals court has blunted another legal attack against the New York farms that account for the bulk of American foie gras, this time declining to order the state's agriculture commissioner to make a declaration about whether commercially produced duck liver is an adulterated food product that is dangerous to the public.
The Appellate Division, Third Department, decided that the parties pursuing the Article 78 proceeding against the agriculture commissioner on the adulterated food question lack a basis to do so under §204 of the State Administrative Procedure Act or under Agriculture and Markets Law §200.
The appellants, which include the U.S. Humane Society, cannot prove an injury-in-fact that is different than the general public's, as it must to have standing to sue under Administrative Procedure Act §204, the court ruled in Matter of Humane Society of the United States v. Brennan, 506189.
The commissioner also met his obligation to answer the groups' request for a decision on the adulterated food question in the allotted time in 2006, the court determined.
"Even assuming petitioners' alleged injuries to be true -- i.e., that force-feeding ducks causes the birds to become diseased animals, rendering their harvested livers adulterated food products within the meaning of Agriculture and Markets Law §200 -- because the commissioner issued a timely response to their request, they did not suffer an injury within the zone of interests protected" by §204 of the Administrative Procedure Act, Justice Bernard J. Malone Jr. wrote for the unanimous court.
The judge ruled that the Humane Society had failed to sustain other arguments to establish that it had common-law taxpayer standing to sue.
The decision affirmed a March 2008 determination by Albany Supreme Court Justice John C. Egan Jr. Third Department Justices Thomas E. Mercure, Edward O. Spain, E. Michael Kavanagh and William E. McCarthy joined in Justice Malone's ruling.
In June 2006, a number of groups, including the Humane Society, the Government Accountability Product's Food Safety Program and Farm Sanctuary, formally asked then-state Agriculture Commissioner Patrick Brennan to declare foie gras an adulterated food product.
Without elaboration, Brennan declined to make such a declaration the same year.
The groups contend the ducks' livers are unnaturally and cruelly expanded by force-feeding within two weeks of their scheduled slaughters, maximizing their output of foie gras, which is French for "fatty liver."
Hudson Valley Foie Gras, the chief object of the appellants' attention, produces more than 75 percent of the foie gras sold in the United States. The action before the Third Department also named as respondents two other Sullivan County farms, La Belle Farm Inc., and Bella Poultry Inc.
"Adulterated" foods are generally defined as those that are spoiled or contain unnecessary additives that alter the nature of the food product.
Carter J. Dillard, an attorney for the Washington, D.C.-based Humane Society handling the suit, said his group believes the livers of ducks become diseased during the heightened pre-slaughter feeding process. He said studies have suggested that human health problems, including rheumatoid arthritis, have been worsened by eating foie gras.
Dillard said in an interview that the Humane Society is considering an appeal.
"It seems the court really didn't get beyond the basic jurisdictional issues," Dillard said.
He added that the group was disappointed that despite the hundreds of pages of documents it filed, the appeals court ruled on a narrow standing issue and did not get to the merits of adulterated food or cruelty issues.
"There is to me the question that foie gras is an adulterated food product and it is diseased," Dillard said. "The courts and the legislatures just have not caught up with the science on this yet."
Michael Lanefsky, the attorney for the foie gras farms, contended the appellants know there is no solid scientific evidence that foie gras is potentially dangerous to humans, yet they continue to make the allegations in court.
"There is no evidence whatsoever that over 4,500 years of eating foie gras that anyone has every gotten sick from eating it," Lanefsky said in an interview.
The Humane Society has also pursued other cases against the Hudson Valley foie gras farms.
Another Appellate Division panel ruled last year in Matter of Humane Society of the United States v. Empire State Development Corp., that the animal-rights' group and other organizations lacked standing to challenge a $420,000 state economic grant for an expansion of the Hudson Valley Foie Gras' operation received in 2006 (NYLJ, Aug. 5, 2008).
Another case, Humane Society of United States v. HVFG, LLC, 7:06-cv-06829, challenges Hudson Valley Foie Gras for more than 1,000 violations of the federal Clean Water Act. That action, in the U.S. District Court for the Southern District, was transferred last week from Judge Stephen C. Robinson to Judge Harold Baer Jr.
The Department of Agriculture and Markets declined to comment Friday on the ruling.
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