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Foie Gras Lawsuit Dismissed Against Napa’s La Toque

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But the Animal Legal Defense Fund is still declaring victory

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Pan Roasted Foie Gras from Restaurant Marbling cuisine at Causeway Bay. 15JAN16 SCMP/Sam Tsang Photo by Sam Tsang/South China Morning Post via Getty Images

A lawsuit against Michelin starred wine country restaurant La Toque for serving foie gras as an off-menu “gift” to customers has been dismissed in California Superior Court. La Toque chef Ken Frank, an outspoken foie gras proponent, is celebrating the dismissal as a victory — but so is the Animal Legal Defense Fund, who filed the lawsuit six years ago.

California passed the first statewide ban on the sale (but not the possession or import) of foie gras — the fattened livers of force-fed ducks — in 2004. The ban took effect in 2012. In 2013, the Animal Legal Defense Fund (ALDF) sued La Toque, claiming that the restaurant’s workaround policy —serving foie gras as a “gift,” not a menu item — still violated the law on foie gras sales. Meanwhile the foie gras ban was challenged in court by restaurant owners and foie gras producers, and ultimately overturned in 2015. It wasn’t enforced during a legal back-and-forth, and foie gras returned to menus as a for-sale item. Then, this January, when the US Supreme Court announced it wouldn’t hear a challenge to the law, the ban went back into effect.

“We immediately moved to reopen this case against La Toque when the law went back into effect earlier this year, because we thought they were going to continue violating the law in the way they had before,” Kelsey Eberly, a staff attorney for the ALDF, told Eater SF.

Ultimately, Judge Victoria Wood dismissed the suit against La Toque — but she pointed to a previous decision in the ALDF’s favor as her reason for doing so. When the complaints were made against La Toque in 2013, Wood wrote, “the statute was new and there was no legal precedent yet clarifying whether section 25982 banned as a ‘sale’ the serving of foie gras on a purportedly complimentary basis, but in conjunction with other bargained-for items.”

But now that ambiguity no longer exists. In 2015, the Court of Appeal ruled in ALDF’s favor that the ban included “serving foie gras as part of a tasting menu, regardless of whether there it is a separate charge for the foie gras, whether it is listed on the menu, and whether it is characterized as a ‘gift’ by the restaurant.” In light of that clarification, Judge Wood concluded that an injunction against La Toque was no longer necessary — the restaurant was unlikely to return to its previous “gift” “system — and she dismissed the ALDF’s suit.

Going forward, says Frank, “I have no intention of breaking the law, but will continue to protest loudly and look forward to getting foie gras back on the menu as soon as possible.” In light of the judge’s dismissal, which he considers a win, he will ask that ALDF reimburse La Toque for thousands in court costs.

Still, ALDF considers the success to be theirs. “We’re celebrating this even though it’s a complex victory,” says Eberly. “A line has been drawn in the sand by the Court of Appeal, and no other restaurant is likely to do what La Toque was doing.”

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