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In: Protecting Chickens. Out: Protecting Geese.

California is now in the awkward position of ushering in a new law aimed at treating hens more humanely right as foie gras makes its return to menus across the state.

“FOIE is back.”

The tweet, plus a mouthwatering image of a seared lobe of foie gras in a port and balsamic gastrique, balanced atop a slice of brioche by Searsucker Del Mar Executive Chef JC Colón, went out a little after 5 p.m. Wednesday. By 5:30 p.m. waitstaff had already sold their first legal appetizer portion of foie since 2012, when California’s ban on the fatty goose liver went into effect.

Clare Leschin-Hoar LogoHow did Searsucker secure the delicacy mere hours after U.S. District Judge Stephen V. Wilson overturned the ban?

“Let’s just say we know a guy,” said Colón.

The ban, first signed into law in 2004 by then-Gov. Arnold Schwarzenegger, prohibited both the production of foie gras – which uses a technique known as gavage, in which ducks or geese are force-fed through a tube – and the sale of the delicacy in California.

The fight has been raging since, pitting animal advocacy groups against chefs, farmers and foodies. (If you’d like a detailed look at the process and controversy around it, this 2009 Village Voice story by Sarah DiGregorio is especially good.)

Wilson ruled that the California ban was unconstitutional because it runs afoul on the federal Poultry Products Inspections Act, which regulates the sale and distribution of foie gras. The ban on production of foie gras in the state will remain in effect.

That means producers of foie gras can ship their products into California, but California farmers will not be able to use the same method to produce foie gras on farms within the state.

If that setup and the conversation about the humane treatment of birds who provide us tasty treats sounds familiar — it should. The fight over foie shares a lot with the arguments being lobbed over California’s new egg law.

California’s Prop. 2, which went into effect Jan. 1, mandates that farm animals, including egg-laying hens, have enough room to spread their wings, turn around and lie down. It also protects California egg farmers by keeping out eggs produced in other states, like Iowa, that use intensive, less expensive animal practices — like battery cages, where several hens are housed in the same cage, often without the ability to spread their wings or exhibit other natural behaviors like nesting or perching. And it forced egg farmers like San Diego’s Frank Hilliker to convert their operations, often at great cost.

Lots of coverage of Prop. 2 has speculated that the law will force egg prices to spike. But so far Hilliker says any rising costs might not necessarily be thanks to Prop. 2.

“Demand across the nation is high so eggs are high now,” he said.

“That’s what makes the egg law very much like the foie gras law,” said Baylen Linnekin, executive director of Keep Food Legal Foundation, a nonprofit that promotes food freedom of choice. “Is this the end of the egg law too? Maybe. It’s too soon to say, but if a court in lefty Los Angeles is using the rational that the law was unconstitutional to overturn the foie gras ban — then I think a court in Fresno where the egg case is being heard might decide to do the same thing.”

So far, a lawsuit filed by Missouri Attorney General Chris Koster and five other states challenging Prop. 2 has been thrown out because the court determined the law did not harm residents of those states.

Linnekin breaks it down this way: “The people who brought that lawsuit were the attorneys general, and the court said, ‘You’re not the right people to sue.’ What would need to happen is that someone who is not an attorney general, like a farmer who wants to sell eggs in California from another state or from Mexico, would have to sue. To the best of my knowledge, that hasn’t happened yet.”

It did in the fight over foie gras. The lawsuit here was brought by a group of Canadian foie gras farmers; an American producer, Hudson Valley Foie Gras and California-based Hot’s Restaurant Group, challenging whether California’s foie ban was on the ingredient itself or the process to create it. The judge determined that “California cannot regulate foie gras prooducts’ ingredients by creatively phrasing its law in terms of the manner in which those ingredients were produced.”

Humane Society President Wayne Pacelle strongly disagreed with that ruling.

“The state clearly has the right to ban the sale of the products of animal cruelty, and we expect the 9th Circuit will uphold this law, as it did in the previous round of litigation. Force feeding is not an ‘ingredient’ of foie gras since foie gras can be produced without resorting to such cruel methods. We are asking the California attorney general to appeal the ruling,” he wrote in a statement.

Strong sentiments over foie gras won’t be going away anytime soon. Colón was eager to get it back on the menu, but even he was hesitant to sing foie’s praises publicly.

“I’ve given it some thought, but don’t want to say I’m for or against it because it’s still so controversial,” he said.

Cowboy Star chef de cusine Chris Osborne told me foie gras had been a popular menu item before the ban went into effect, but is unsure whether they’ll offer it going forward.

“We only use humane products,” said Osborne. “Honestly, the people who really follow it are the same guests that buy it independently, bring it in and we cook it for them. The guests who really like foie gras have already adapted to purchasing it themselves.”

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