On Point - A New Take On Legal News

Are Activists Really Harmed by Foie Gras Business?

In a new offensive against foie gras, animal rights activists have sued New York state agriculture officials for refusing to declare the duck liver delicacy an “adulterated” product. But the plaintiffs' alleged injuries may not be enough for the suit to fly.

New York law defines an “adulterated” food as “the product of a diseased animal.” Activists claim foie gras fits that definition because the birds from which it is made have a liver condition caused by forced feeding.

But the state Department of Agriculture and Markets in July rejected the petition of several animal rights groups that sought to have foie gras declared adulterated. And now in a complaint filed in Albany County Supreme Court, the Humane Society and six individuals are trying to force the state's hand.

The suit is something of a change in strategy for activists, who have mostly focused on getting legislatures to ban foie gras. New York is home to two of the country's three foie gras producers.

The Humane Society “has been and will continue to be injured by the Respondents’ failure to declare foie gras an 'adulterated' food product,” the suit says.

At the pleading stage, consumer safety plaintiffs can show standing by alleging an injury that is “concrete and particularized.” In a somewhat similar case involving mad cow disease, the 2nd U.S. Circuit Court of Appeals ruled that standing requirements were satisfied by “exposure to an enhanced risk of disease transmission" from downed livestock. Baur v. Veneman, 352 F.3d 625 (2003)

The foie gras plaintiffs specifically allege, among other things, that they have “committed substantial financial and human resources” to warning the public about the cruelty of the foie gras production method and have been “aesthetically and emotionally injured by being exposed to the suffering” of sick and dying birds.

Plaintiff Joy Pierson, a New York restaurateur, even claims she has lost revenue by having to compete for gourmet customers with restaurants that do serve foie gras.

Such alleged injuries, however, seem speculative, rather than “concrete,” compared to those in Baur. In Pierson's case, gourmet diners may have any number of reasons for not patronizing her restaurants apart from the absence of foie gras on the menu.

If, moreover, the Humane Society is harmed by a battle against a legal practice that it chose to fight, doesn't that make it a victim of its own actions, rather than the state's? And since when is it the New York ag department's job to protect the emotions of animal rights activists?

By Peyton Burgess (CNS)
1/10/07

"Best Interest" Test Upheld in Surname Dispute

The Oregon Court of Appeals has made something of a feminist statement in ruling that the father of a two-year-old girl does not have a legal right to require her to use his surname.

In an unusual family law dispute, Chad Doherty argued that the court should recognize a presumption in his favor as the father and allow him to change his daughter's surname to “Doherty” from “Wizner,” the surname of the mother's ex-husband.

That presumption, Doherty said, should apply unless the mother, Christy Wizner, could show it would not be in the child's best interest to rename the child because he was an unfit father in some way. Wizner has custody of the child and her three children by her ex-husband use the Wizner name.

But the appeals court examined the “historical development of surnames in America” and concluded that “Father's insistence that we recognize a paternal preference or presumption ignores a half-century of social change and development of the law in our country.”

Applying the “best interest” standard “free of any presumptions or preferences,” Judge Pro Tempore Daniel L. Harris stressed the importance of the “reasonable preference of the custodial parent” and avoiding “any confusion or embarrassment” that could result from the child having a different surname from her siblings.

“[T]hese considerations, when combined, establish that it is in the best interest of the child that her surname remain Wizner,” the opinion said.

A Morrow County trial judge had granted Doherty's request for a name change, citing the custom of naming a child after a parent the child is related to "by blood." But Harris showed his awareness of social change by noting that

The custom of children using the father's surname has for centuries disregarded, in the words of one commentator, "a mother's pride in her own ancestry and her desire to have her children perpetuate her name."

By Matthew Heller
1/10/07