A midnight egg amendment creates a Constitutional quandary

posted at 6:31 pm on July 15, 2012 by Erika Johnsen

On July 1st, a new state law went into effect in California banning the sale and production of foie gras. For those not inclined to exploring the sometimes unsavory truths behind perhaps unfamiliar culinary delicacies, foie gras is a traditional French food made out of the especially silky-textured livers of geese or ducks that have been force-fed grain to fatten them up. Animal rights activists have never been fans of the practice (even though suppliers claim that the production looks painful to the animals, but isn’t — ducks and geese don’t have digestive tracts comparable to humans’), and California as a state decided they didn’t much like the idea, either.

The law doesn’t seem to have much efficacy to me, although it looks like local producers could still sell foie gras if it was made without force-feeding the animals (although it would presumably be less delicious). For instance, what’s to stop restaurants from importing foie gras from France and serving it for free along with pricey pieces of toast?), and I don’t believe any government anywhere should be involved in making such trifling rules over people’s personal choices. But, oh well — that’s federalism, I guess. The states are in control of all powers not designated to the federal government in the Constitution, and if California’s legislature really wants to go there, that’s their choice. If people decide the costs of residing in a certain state outweigh the benefits, they can leave, which encourages states to compete for the best policy prescriptions.

But here’s the rub: How does the foie gras ban mesh with the federal government’s power to regulate interstate commerce? Rep. Steve King (R-Iowa) doesn’t seem to think that it does:

King, in a midnight vote, got an amendment attached to the 2012 farm bill aimed at stopping a California law banning the sale of eggs harvested from hens living in tiny cages where they cannot spread their wings. It also stops the law from banning the sale of foie gras made using forced feeding.

The lawmaker’s move infuriated animal-rights activists because it hurt their attempts to secure better living conditions for the animals.

But the California legislature also applied the egg restrictions to imported eggs after local farmers argued they were at a competitive disadvantage.

King argues states can’t make such a ban, saying states can’t apply a law to imported products on the grounds that only the federal government can regulate interstate commerce under the Constitution. …

Pacelle said the amendment was poorly crafted and could have the effect of stopping states from regulating products sold only within those states.

The wording of the amendment forbids states to “impose a standard or condition on the production or manufacture of any agricultural product sold or offered for sale in interstate commerce” if “such production or manufacture occurs in another state.”

Iiiiinteresting. Who would’ve thought that just another California nanny-state, animal-rights-driven regulation could spark such a debate? The amendment really would have far-reaching implications for a lot of players, and there are plenty of food producers, lobbies, and agribusinesses with dogs in the fight.

France, meanwhile, is responding in kind. I wouldn’t say the French are really known for putting up much of a fight (while most of Europe teeters on the brink of financial collapse, they’re happily electing more Socialists into public office — go figure), but when it comes to food-related matters, they can apparently be pretty touchy.

A political official in southern France is urging the nation’s restaurants to stop serving California wines in response to the U.S. state’s ban on foie gras. …

“I call on all the restaurants in France that sell Californian wine to stop doing so in a show of solidarity for our foie gras makers and, more broadly, for all food makers,” said Philippe Martin, the president of the general council in the Gers department, near the Pyrenees mountains. …

“This won’t have severe impact on the Gers region trade balance, let alone the French trade, or the California trade balance, but we had to send a strong signal because we think this is an unfair measure,” Martin said yesterday in a telephone interview.


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