A worker is seen force-feeding a duck recently at the Hudson Valley Foie Gras farm in Ferndale, N.Y. (AFP/Newscom)
ALBANY – An appeals court has ruled that neither a California-based animal rights group nor a New York resident it represents have standing to compel the state to halt the commercial production of foie gras at farms in the Hudson Valley.
The petitioners contend that force-fed ducks or geese produce pate that is potentially dangerous to consumers and, as such, is banned in New York as an adulterated food under state Agriculture and Markets Law §200.
But a unanimous panel of the Appellate Division, Third Department, decided in Matter of Animal Legal Defense Fund v. Aubertine, 517940, that the petitioners could not demonstrate an injury in fact based on more than “conjecture or speculation.”
The Animal Legal Defense Fund (ALDF) sued on behalf of itself and Daniel Stahlie, who is identified in court papers as a New York resident concerned that the Hudson Valley-produced foie gras he eats occasionally at parties has increased his chances of contracting secondary amyloidosis, a potentially fatal condition when combined with serious chronic infections or illnesses.
The suit contended that duck and goose livers that grow to eight or 10 times their normal size due to force-feeding are diseased.
Writing for the court, Justice John Lahtinen (See Profile) said the petitioners failed to carry their argument that Baur v. Veneman, 352 F.2d 625 (2nd Cir. 2003), established their claim. In that case, the animal rights group Farm Sanctuary successfully sued to compel the U.S. Department of Agriculture to ban the slaughter and consumption by humans of cattle that had collapsed due to what consumers feared was Mad Cow Disease.
While Mad Cow was an “undisputedly very serious” disease with confirmed human fatalities, Lahtinen wrote that the allegations of the potential danger from secondary amyloidosis stemming from foie gras consumption is far less certain.
“Although petitioners included expert opinion indicating a possible risk of secondary amyloidosis from foie gras for some individuals with certain medical conditions, they cite no situation of any person ever suffering secondary amyloidosis that was linked to foie gras,” the judge wrote.
He added, “There are no studies, statements or warnings by the regulating agency or other pertinent governmental entity regarding a relevant risk related to the occasional consumption of foie gras.”
As for the Animal Legal Defense Fund, the judge said that the organization lacked standing because it had not demonstrated it was using its own resources to do something the government should have been doing.
“Here, ALDF brought the litigation and it is expending funds in a manner consistent with its stated core mission of using the legal system to advance its policy regarding animal cruelty,” Lahtinen wrote. “Finding standing under the situation presented here would essentially eliminate the standing requirement any time an advocacy organization used its resources to challenge government action or inaction.”
The decision affirmed a determination by Albany County Supreme Court Justice Patrick McGrath in January 2013 that the petitioners lacked standing.
Assistant Attorney General Andrew Ayers defended the Department of Agriculture and Markets. “We believe that the court properly decided the case,” said Joe Morrissey, spokesman for the agriculture department.
David Lenefsky of Manhattan represented Hudson Valley Foie Gras of Ferndale, the largest producer of duck and goose liver products in the United States.
Lenefsky said in an interview Monday that there is “no history whatsoever of adulteration or injury to human health” from foie gras, which has been consumed by humans as a delicacy for 5,000 years. He said artwork from ancient Egypt depicts ducks and geese being fed much the way they are today at Hudson Valley Foie Gras to enhance their liver size.
Lenefsky also denied claims by animal rights’ groups that the water fowl are mistreated.
“If you went to the farm and saw the animals, you would see that there is no distress on the part of these animals—period,” Lenefsky said.
Elizabeth Hallinan appeared for the Animal Legal Defense Fund pro hac vice. She said the ALDF was likely to appeal.
“ALDF does not agree with the court’s vague determination that ALDF was unable to show standing,” Hallinan said in a statement. “ALDF continues to be of the opinion that it has a right to seek a declaratory judgment that the New York state Department of Agriculture and Markets’ ongoing failure to deem force-fed foie gras an adulterated and diseased food product is contrary to law.”
Meanwhile, in another foie gras controversy, the U.S. Supreme Court is expected to announce by early October whether it will hear a case in which 13 states are challenging as an impermissible restraint on interstate commerce the ban which went into effect in California in 2012 against the sale and production of foie gras from force-fed ducks and geese.
Hudson Valley Foie Gras is also a plaintiff in the California case, Association des Éleveur de Canards des d’Oies du Québec v. Harris, 13-1313. New York is not among the states challenging the California law.
The action rejected by the New York court on July 17 was the first the Third Department has taken up since it rejected challenges to foie gras production in the late 2000s in Matter of Humane Society of the United States v. Brennan, 63 AD3d 1419 (2009), and Matter of the Humane Society of the United States v. Empire State Development, 53 AD3d 1013 (2008).
Those cases were also dismissed on standings grounds.
The named defendant in the case is Darrel Aubertine, the former state agriculture commissioner.