Declining to question the wisdom of Chicago's ban on foie gras sales, a federal judge has upheld the first municipal ordinance of its kind against a constitutional challenge by restaurant owners.

“[T]he Ordinance’s constitutionality does not depend on whether the court or the parties agree as to its wisdom,” U.S. District Judge Blanche M. Manning said in granting the city's motion to dismiss. “The plaintiffs’ numerous arguments regarding the desirability of a foie gras ban are, therefore, beside the point.”

Manning quoted a 19th-century Frenchman as describing foie gras as “the supreme fruit of gastronomy.” But the Chicago law, she concluded in her order, is “a valid exercise of Chicago’s home rule powers under the Illinois Constitution because it is aimed at a sufficiently local problem.”

Illinois broadly allows “home rule” municipalities to “exercise any power and perform any function pertaining to its government and affairs including, but not limited to the power to regulate for the protection of the public health, safety, morals and welfare.”

In an injunctive relief action, the Illinois Restaurant Association claimed the Chicago City Council exceeded that authority in April 2006 when it became the first city in the nation to ban on foie gras, the fattened liver of a force-fed duck or goose. California has enacted a similar statewide ban that will take effect in 2012.

According to the plaintiffs, foie gras production is not a problem “in which Chicago has a legitimate and substantial local interest” -- no birds are raised anywhere near the city –- and officials had failed to offer any justification for the ban on health or any other grounds.

The ordinance is a “moral statement” which was passed “because of the purportedly inhumane manner in which foie gras is produced,” the plaintiffs argued.

But Manning held that the city could legitimately “use a foie gras ban to make a statement about the methods used to produce foie gras ... since local political bodies traditionally enact legislation reflecting the perceived desires of their constituency.”

“The Ordinance thus reflects the City Council’s judgment that banning the sale of foie gras would benefit the City and advance the morals of the community,” she said. “The court cannot sit as a superlegislature and determine if, in its judgment, the City Council was correct.”

The restaurant association is considering an appeal. "We feel that foie gras is a legal product and the ban is infringing on our owner's right to sell it," a spokesman said.

Elsewhere on the foie gras front, a Humane Society suit that seeks to declare the delicacy an “adulterated product” unfit for human consumption is pending in Albany County, N.Y.

By Matthew Heller
6/13/07