A New Era of Prohibition: The Rise of the Californian Nanny State

In the Sermon on the Mount, Jesus tells his listeners that a man with a beam in his eye ought not to criticize another with a mere speck in his. The message: sort out your own crippling shortcomings before presuming to meddle in someone else’s. It’s good advice for an individual; it would be even better advice for the state of California. Good counsel, however, has a way of falling on deaf ears in the Golden State. While lawmakers have found themselves incapable of dealing with crippling budget deficits, a public-pension liability that hovers around a half-trillion dollars, and a business environment consistently ranked as the nation’s worst, they’ve decided that the state’s most pressing problem is its people—specifically, their culinary eccentricities.

On July 1, the state with the nation’s largest economy ushered in a new era of prohibition, banning the sale of foie gras, a French delicacy made out of the intentionally fattened liver of a duck or goose. As anyone who has ever patronized a Sacramento tavern while the legislature is in session knows, this is perhaps the first time in recorded history that state lawmakers regarded hepatic dysfunction as cause for alarm.

The ban was a long time coming. Like many of California’s logic-starved but passion-distended nanny state impulses, it traces its origins to the era of Arnold Schwarzenegger, who signed the bill into law in 2004. As written, the law’s apologists point out, the statute isn’t quite an outright prohibition; it simply makes illegal within state borders the sale or production of foie gras produced by force-feeding the birds—the only method that has ever brought widespread success. The nearly eight-year window between passage and implementation was intended to allow time to develop alternative methods of production. Outlawing proven business models while waiting for a superior alternative to emerge from whole cloth is what passes for cultivating entrepreneurialism in California.

Still, leaving aside the economics, it’s difficult not to feel at least fleeting sympathy with the animal activists who decry the practice as inhumane. Referring to the methods used to fatten the birds, John Burton, the former state senator who authored the legislation (and who now serves as chairman of the California Democratic Party), recently said, “I’d like to sit [the opponents of the ban] down and have duck and goose fat—better yet, dry oatmeal—shoved down their throats over and over and over again.”

Burton would have a point if his analogy were more accurate and less mean-spirited. The reality for the birds, however, is considerably different. These fowl don’t possess anything resembling a human gag reflex, as their windpipes actually open in the center of their tongues, meaning they’re not choking during the seconds-long feeding process (these are the same animals, remember, that can regularly be seen swallowing large fish whole in the wild). In fact, it’s not atypical for ducks and geese to come to the feeding tubes voluntarily once they’re conditioned for it. Nor is the gorging especially alien to the birds, who naturally engage in the practice when preparing for migration. California’s sole foie gras producer, Artisan Sonoma Foie Gras (which will have to close its doors and put more than 35 people out of work), was hardly a model of inhumane treatment, either. A family business started by immigrants fleeing El Salvador’s civil war, Artisan allowed its ducks to roam free-range for most of their lives, refused to give them hormones or antibiotics, and, according to its website, kept them “in groups of about 10–12 ducks per pen measuring about 30 square feet.” This was hardly a scenario from the pages of Upton Sinclair.

Unfortunately, Guillermo Gonzales, Artisan Sonoma’s owner, succumbed to pressure to support the Burton bill in 2004 after a provision was added granting his company immunity from civil lawsuits—the only outcome he thought would avert financial ruin for his family (animal-rights groups had been taking Gonzales to court on a regular basis). With that hurdle overcome, the law looked to be on a glide path to implementation. But the legislature didn’t count on another wellspring of opposition: the chefs, restaurants, and foodies whose opposition to the ban was visceral.

In late June, as implementation of the law neared, a remarkable phenomenon took place throughout California: in what was known colloquially as the “foiepocalypse,” restaurants up and down the state saw demand for foie gras skyrocket. One San Francisco steakhouse offered up an eight-course, $185 foie gras feast the night before the ban took effect. Private foie gras parties were held at secret locations to avoid animal-rights protesters. Prices soared to the point that Gonzales was selling his product at $60 per pound (a nearly 35 percent increase from the prior month). Needless to say, animal-rights activists were appalled; but they probably would have gotten over it had the festivities truly sounded the death knell for foie gras.

No such luck. As soon as the law took effect, New York–based Hudson Valley Foie Gras (the nation’s largest producer) and a Los Angeles restaurant group filed a lawsuit against California in federal court. Though the judge denied a request for an emergency injunction, the case will move forward in late August.

Meantime, California has seen a remarkable blooming of culinary civil disobedience. The Presidio Social Club in San Francisco unapologetically put foie gras on the menu. Management’s rationale: as a part of the National Park Service, the Presidio is bound by federal, not state, laws. When public pressure mounted, the Presidio removed the item from the menu—but the restaurant’s executive chef stated publicly that foie gras would be available on request. Eateries without legal rationales as convenient as the Presidio’s have opted for more creative methods. Since the law prohibits only the sale of foie gras, not its distribution, stories of restaurants like Playground in Santa Ana—where buying a round of beer for the kitchen staff gets a “complimentary” serving of the delicacy delivered to your table—have been widespread. Still others are happy to prepare foie gras that customers bring in themselves.

The law’s language is so vague that most of this impishness is likely legal, presenting significant obstacles for prohibitionists. Animal-control and peace officers are authorized to enforce the law, but that understandably low priority has only been diminished by the legal ambiguities. Had they done their homework, California officials could have seen this coming. In 2006, Chicago became the first jurisdiction in the United States to ban foie gras. Within two years, the city council, with the strong backing of then-mayor Richard Daley, overwhelmingly repealed the ban in the face of similar defiance. Scofflaws were so commonplace that offending establishments had even earned a special sobriquet: “duckeasies.”

Having failed to take a lesson on the failures of excessive regulation from Chicago, California will likely learn from the Windy City’s example of repealing a law rather than seeing it so widely flouted. Many factors recommend that course of action. It would allow Guillermo Gonzales to return to the business that he and his wife spent nearly three decades building and to restore the jobs of his three dozen employees. It would take law enforcement out of the ridiculous position of trying to adjudicate what constitutes a “sale” of duck liver. And, most importantly, it would allow California to refocus on its most urgent concern: removing the beam from its eye.

(Troy Senik is senior editor at Ricochet and a senior fellow at the Center for Individual Freedom. Originally posted on City Journal.)