Best of Doublethink Flashback: Fighting Chicago’s Foie Gras Ban

Editor’s Note: The following piece, Baylen Linnekin’s report on attempts to ban foie gras, is the fourth installment of a two-week series recalling ten of the best contributions to Doublethink. This item originally ran on July 8, 2007. Many thanks to the three former Doublethink editors — Cheryl Miller of the American Enterprise Institute, James Poulos of The Huffington Post, and Reason Magazine’s Peter Suderman — who assisted in compiling this list. — Joel Gehrke

 

The goose is nothing, but man has made of it an instrument for the output of a marvelous product, a kind of living hothouse in which grows the supreme fruit of gastronomy. — Charles Gérard, author of the 1877 French food historical L’Ancienne Alsace à table, quoted on foie gras in Larousse Gastronomique.

Eden was the first nanny state. First, the story goes, God created mankind — Adam and Eve — in His own image, placing them in Eden. Then God forbade Adam and Eve from eating the figurative apple. The rest, if you buy this line, is history.

While most pre-democratic societies sought to ban one thing or another on religious grounds, America’s Founding Fathers explicitly rejected this approach. Their Constitution limited government power and left individuals free to do as they please, absent real harm to one another.

The American nanny state is a modern creation, but this burgeoning behemoth is rooted firmly in Eden. Like God at Eden, today’s nanny staters seek to mold man in their own image.[1] And, like God at Eden, these meddling do-gooders increasingly seek to forbid people from eating not just the figurative apple, but a wide variety of other foods.

No American food ban today is more contentious than Chicago’s foie gras ban. That’s why, prior to traveling to Chicago in the dead of winter earlier this year, I emailed Chicago Chefs for Choice, a group leading the fight against the ban.

That correspondence brought me to a warm, genial Chicago bistro owned by Didier Durand, a courageous French immigrant who wants to cook what his customers enjoy and who is fighting what may be America’s dumbest prohibition.

Over one of the best and most forbidden meals of my life, Durand and his fellow chefs, their customers, and Don Gordon, a Democratic party candidate for alderman, spoke about the importance of defending individual rights in between bites of forbidden foie gras.

What is Foie Gras? To understand why foie gras is a political issue — and why necessity led Durand to coin the term “Duck-easy,” a riff on Chicago’s Prohibition-era speakeasies — it’s first necessary to explore what foie gras is, where it comes from, and why it’s so reviled by some.

Foie gras is French for “fatty liver.” Foie, as the dish is commonly known in foodie circles, can be produced only from goose or duck liver. (Article L654-27-1 of French rural code says as much.)

Though duck and goose livers are both popular in France, duck foie gras prevails in the United States. France produces the bulk of the foie gras consumed around the world. Domestically, restaurateurs, supermarkets, and mail-order buyers get their foie gras from farmers based in France, Canada, California, and New York State.

A typical serving of foie gras (pronounced fwah grah) is small — usually only a couple of ounces. It’s expensive, too, with a lightly adorned portion often setting a restaurant-goer back at least $20. When paired with other delicacies, like truffles, or appearing in classic dishes like Beef Wellington, a meal featuring foie can easily stand out as a mid-three-figure indulgence.[2]

In spite of the cost, U.S. demand for foie gras has steadily grown in recent years. The American palate has grown increasingly knowledgeable and adventurous, and many have developed a taste for foie’s alluring, delicate flavor. Buttery and unctuous, foie may best be described in flavor and texture as a cross between a Kobe beef steak and a rich custard. It’s that good, that unusual, and that fatty. And it has about as much in common with your basic serving of chicken livers as a Happy Meal does with a good steak frites.

Foie is produced by fattening a bird’s liver, causing it to swell to several times its normal size. This is done through a process (also from the French) known as gavage — , which takes place for a two-week period prior to a young bird’s slaughter. Gavage, literally “cramming,” involves inserting a metal tube into a bird’s throat and forcing food — often cornmeal mixed with fat — down its gullet. The process takes a matter of seconds, and is usually repeated a couple of times each day.

This force-feeding is necessary to impart foie’s unique flavor and texture. And it doesn’t just fatten the bird’s liver; it fattens the whole bird. This is why, and from where, we have foie gras in the first place.

History of Foie Gras Foie Gras: A Passion, a paean co-authored by one of the proprietors of New York State’s Hudson Valley Foie Gras, traces the food’s origin back 4,500 years to ancient Egypt. The book notes that bas reliefs from the period depict servants of the Egyptian aristocracy grasping domesticated “geese around the neck in order to push pellets down their throats” so as to fatten the birds. The practice likely came about when Egyptians noted that wild geese tended to gorge themselves before migrating.

Though it’s unclear whether the pharaohs ate foie, the Romans certainly did. Larousse Gastronomique, one of the bibles of French cooking (my 1966 edition boasts a whopping forty-one different foie recipes) cites one Scipio Metellus as the father of foie gras.

The Jews, who had lived in peril under both Roman and Egyptian rule, are probably to credit for introducing foie gras to modern Europe. Like the ancient Egyptians, Jews valued goose fat for the solution it presented, since dietary restrictions forbade either group from cooking with lard (pig fat).

Furthermore, because Jewish law prohibits the preparation of meats in tandem with dairy products, observant Jews don’t use butter in the preparation of meats. For European Jews unable to afford or otherwise acquire acceptable cooking oils, fat obtained from force-fed geese — schmaltz in Yiddish — was a simple (and Kosher) alternative.

But while Jews brought the practice of force-feeding geese to Europe, foie gras was perfected by the French — whose cuisine rose to great heights based almost purely on their ability to coax beautiful flavor out of animal parts other chefs tended to throw away.

Many Americans first read about foie gras in the early 60s in Julia Child’s Mastering the Art of French Cooking. But by 1965 my edition of the Better Homes and Gardens New Cookbook was pushing on its “Dips, dunks, and spreads” page a “Mock Pate de Foie Gras” (featuring calves’ liver) alongside the likes of what its taking-the-pulse-of-America test-kitchen experts labeled the “Appetizer Ham Ball,” the “Blue-cheese Dunk” (sic) and the “Dried-beef Log” (sick).

With a lengthy history spread across epochs, religions, and continents, foie might seem a poor candidate for controversy. Yet for some, force-feeding makes foie gras an unpalatable, unacceptable dish. And, for the moment, foie gras’s opponents, in a growing number of places, are bringing the law to their side.

Opposition to Foie Gras Critics of foie gras argue that its production is inherently cruel. Animal-rights groups like the Humane Society of the United States (HSUS), Farm Sanctuary, and PETA claim a force-fed bird suffers as its liver swells to several times its normal size. Paul Shapiro, director of the Factory Farming Campaign for HSUS, calls force-feeding “one of the worst forms of animal cruelty in our society.”

Nazi Germany was the first state to introduce, in 1936, a ban on the force-feeding of all farm animals, under its Animal Welfare Act, according to NoFoieGras.org, an anti-foie website.[3] Of the fifteen countries that have since expressly banned force-feeding, most did not pass foie legislation until the 1990s, when the anti-foie forces in America gained steam.

The fight against foie gras in America has at its heart four watersheds, each echoing the concerns of the animal-rights movement.[4] In 1997, Whole Foods became the first major U.S. retail chain to stop selling foie after company executives toured a duck farm with a prominent anti-foie veterinarian.[5] In 2002, Chicago chef Charlie Trotter, owner of the eponymous Chicago restaurant that is consistently voted one of America’s best, decided to stop serving foie gras, also after touring several farms. In 2004, California enacted a total ban on foie gras production and sale. Finally, Chicago banned the sale of foie gras in 2006.

Chicago’s Foie Gras Ban Because California’s ban does not kick in until 2012, Chicago’s ban is technically the first in the nation. The ban, which came about through the machinations of Alderman Joe Moore, who represents liberal Rogers Park in the far northeast part of the city, prohibits any restaurant from selling foie gras, though grocers and other retailers are exempt. Oddly, the ordinance would not prohibit the opening (which would, admittedly, be unlikely) of a foie farm or slaughterhouse within city limits.[6]

Chicago’s ban was immediately and widely panned. Mayor Richard M. Daley called it “the silliest law the City Council has ever passed.” Charlie Trotter, cited as an inspiration in the text of the Chicago bill, has spoken out against the ban, telling the New York Times he is a “libertarian” who favors neither bans on smoking nor foie gras. Chefs around the country and the world ridiculed Chicago.

This could have been the end of the story of yet another American nanny-state ban. But something wonderful happened. Lots of wonderful things, actually. Rather than observe the ban, Chicago chefs and diners decided to fight.

Chef Didier Durand & Chicago Chefs for Choice Didier Durand is a chef. A French chef. His white chef’s hat and double-breasted jacket are impeccable, and nicely set off his dark eyes, dark hair, and tidy goatee.

Chef Didier, as his staff and, inevitably, anyone in his presence feel compelled to refer to him, was born in Bergerac, France. As a boy, he helped his mother force-feed ducks in preparation for making foie. Later, Durand graduated with honors from the prestigious Lycee Hotelier and went on to work under famed chef Michel Guerard.

Chef Didier moved to Chicago in the mid-1980s, spending a decade cooking at several prominent restaurants in the city. He opened Cyrano’s Bistro in Chicago’s River North neighborhood eleven years ago.

To Chef Didier, whether to sell foie gras at Cyrano’s was never a question, and he didn’t think twice about challenging the ban. Like many Chicago chefs, Durand continued to offer his customers foie gras even after the ban went into effect in August 2006. A loophole in the law permits restaurants to serve foie so long as it is not sold. Diners might see a restaurant offering, say, a $20 slab of lettuce with a free side of foie gras. So far only one Chicago restaurant has been cited and fined under the law.[7]

But dancing around an injurious and absurd regulation doesn’t change the law. So last year Chef Didier, along with Michael Tsonton, the chef-owner of Copperblue[8] , founded Chicago Chefs for Choice. The group — which boasts 400 members and draws support from restaurateurs around the city, state, country, and abroad — seeks to educate the public and elected officials about foie gras.

Chef Didier is also a spokesman for the 600-member Illinois Restaurant Association, which launched a suit against the city seeking to overturn the ban. Meanwhile, efforts are underway, with the mayor’s support, to overturn the ban from within the city council.

To sustain its costly efforts, Chicago Chefs for Choice launched a series of four Duck-easies, as Chef Didier calls them — fundraisers at Cyrano’s at which more than three-dozen Chicago chefs have prepared the newly forbidden fruit for customers paying between $79 and $139 for a multi-course culinary extravaganza.

Arriving late to Cyrano’s for the last of the four events (coincidentally, but by no means regretfully, the $139 nine-course dinner), I had just missed both the happy hour and an assembly of anti-foie protestors outside the restaurant.

Part of the proceeds from the night’s fundraiser went to Don Gordon, the aldermanic candidate — who was, not coincidentally, running against Joe Moore.[9] As I walked downstairs to the cabaret, Gordon was just finishing up some remarks to the assembled diners and chefs. As Gordon finished, the crowd — at least 50-strong — began to chant.

“Liberté du choix. Liberté du choix. Liberté du choix.”

Freedom of choice.

Any depression I’d been feeling due to Chicago’s miserable weather quickly evaporated. A glass of wine in hand, I was actually glad to be in Chicago in February. And I hadn’t even begun to eat. Chef Didier escorted me to a table upstairs, where I was seated with his assistant, Mirka; Junior, a young chef; Feodor, who works at the University of Chicago; Paul, a local birdwatcher; and Ken, in town from Surry, Maine.

Hors d’oeuvres came first, prepared by the restaurant’s cabaret chef. A “foie gras surprise” in a champagne glass followed. Next up were mushroom and goat cheese empanadas. Then steak tartare.

“I oppose the foie gras ban because I think it’s silly, essentially,” Ken told me. “I am very curious myself as to where the politics of this ban fall, and whether people who oppose it should be considered liberal or conservative… I see this as one of the few places I’m falling on the conservative side. I guess, having been liberal to radical almost of my life, I am becoming more conservative now. And I guess I don’t see a value to control peoples’ behavior in this sort of area.”

Score one for Ken, I thought, as I dug into the pan-seared scallops with cocoa powder, parsnip compote, licorice beurre blanc, and wryly noted “forbidden liver.” I saw their braised short rib ravioli with truffles in a porcini cream sauce. They raised me the artisan cheese plate with preserves and figs.

It was time for a cigarette. I handed the recorder across the table to Junior, the young, newly certified chef, and stumbled to the bar. Like everyone else that night, he had strong feelings about the ban. “I feel that putting this ban here — especially in Chicago — limits my ability to broaden my knowledge and culinary skills. On top of that, it makes Chicago the laughingstock of the culinary world.”

I returned to seared foie gras (“here again” on the menu) on a caramel gingerbread cake with Saigon cinnamon egg nog. Maybe it was the beauty of the dish, or perhaps its flavor, or the fact that I was probably in need of an angioplasty at this point of the meal, but I swear my heart skipped a beat each time I bit into this luminous gastronomic concoction.

Mercifully, only one course remained — a foie gras dessert (“guess what?”) with chocolate pastry and sorbet. (Sorbet. That’s light, right?)

I sat down in the cabaret with Chef Didier after dinner to talk about the ban and the future of foie gras in Chicago. “We just want to have the freedom of choice in the kitchen,” Didier said. “I don’t think this ban is good for the city. We are trying to get the Olympics in 2016, and I don’t think we can get it with the foie gras ban. They just don’t go together. We cannot be a leading city with a foie gras ban.”

Chef Didier calls Don Gordon “an unbelievable person. He doesn’t care about foie gras — he cares about freedom of choice. He doesn’t want to ban food. He doesn’t want to get into peoples’ lives.” I asked Durand whether force-feeding ducks is inherently cruel.

“The duck is built to be force-fed,” he said, echoing the tendency of geese to gorge themselves that was first noticed by the Egyptians more than four millennia ago. “A duck has a neck that is thicker and harder than the palm of your hand. A duck can pick up a whole two-pound fish and — without chewing it — just swallow it.”

Chef Didier cites the research of Daniel Guémené, a French government research scientist who has studied force-fed ducks and geese for more than fifteen years. Guémené concludes that force-fed ducks show no signs of inordinate stress. Regardless, he says, the government has “no role” in his kitchen. “We don’t want the government in our kitchen or in our bedroom. That’s not what they are there for.”

He turns his frustration to Alderman Moore. “There’s no duck farm in [Moore’s] 49th Ward. There’s not even a restaurant serving foie gras in the 49th Ward. What is he doing?

“An aldermanic position is a part-time position,” Chef Didier says. “There are other things to work on. They don’t understand why they got elected. They don’t understand what their constituents want.”

So what’s a foie gras opponent to do?

“If you don’t agree, or you don’t like foie gras, don’t eat it,” he says. “We don’t push that on you. Today [the protestors] were all vegetarian,” he notes. “When you pull a vegetable out of the ground, or when you eat raw asparagus, it’s kind of sad. The vegetables are also living. And when you throw them in a pot of boiling water to cook them, I think it’s kind of ruthless. But I’m not looking to ban vegetarians. I think we should all cooperate and live together.”

Liberté du choix.

Clearly, though he relishes the chance to fight for his rights and those of his customers, Chef Didier would like to be able to jettison the “activist” tag as soon as those rights are restored. “We don’t want to break the law,” he says. “It’s not what we are about. We’re about pleasing our customers.”

Prospects for Repealing the Ban What’s next in the fight over foie gras in Chicago? While the ban remains in place, there are two promising avenues that could lead to its repeal.

The easiest solution would come from the city council itself, which could vote to repeal the ban. Momentum toward repeal is building, and a vote is tentatively scheduled for July.

A more intriguing fix — though also a more protracted one — is currently winding its way through U.S. District Court. In Illinois Restaurant Association v. City of Chicago, the plaintiffs allege that the foie gras ban is unconstitutional under the U.S. Constitution’s Commerce Clause.[10]

The novel suit makes several claims, each of which is strong and could lead to the court overturning the ban.[11] First, the suit claims that because none of the foie gras sold in Chicago is produced in the state — it’s either produced on farms abroad or in other U.S. states — Chicago is unconstitutionally interfering with Congress’s exclusive power to regulate interstate and foreign commerce.

As evidence, the plaintiffs point out that none other than the law’s drafter, Joe Moore, envisioned the law as a boycott intended to punish out-of-state producers. This fact places the law on extremely shaky ground, since courts usually strike down laws expressly drafted to interfere with interstate commerce.

Even if Chicago was permitted to regulate the sale of foie gras, the suit maintains, the city neither claims nor has shown that the ban has the requisite local benefit or impact and is, at best, only tenuously connected to traditional state or local police powers (which typically only permit health or safety regulations). Here, the best the city can do is claim the ban enforces local “morals” and enhances “the city’s reputation” — which is bizarre considering that the ban has made Chicago the butt of a million jokes.

Finally, the suit alleges that the ban is unconstitutional because the USDA governs and permits production and sale of foie gras. Generally, where the federal government chooses to “occupy a field” by regulating it, courts have found that state or local regulations cannot impede the federal diktat.

Ultimate victory for the Illinois Restaurant Association in this suit — whether before the U.S. District Court or on appeal — could have far-reaching impact. If the case were to reach the Supreme Court, the High Court’s decision could help overturn not just Chicago’s ban but all or part of California’s ban. Such a decision could also squelch foie bans now being proposed in numerous other cities and states. Other bans — even those not pertaining to foie — could be overturned by a broadly written opinion in favor of the Illinois Restaurant Association.

Still, even if the suit is successful, it looks as if animal-rights groups are already working on a firmer ban strategy. “Many other animal producers have at least some incentive to keep their animals relatively healthy (although there are exceptions here),” the HSUS’s Shapiro says, “but the whole point of foie gras production is to induce a state of disease in the animals.”

Though Shapiro doesn’t say so explicitly, a finding by a local body that foie gras itself is diseased or that it comes from a diseased animal would be a convenient tool to nanny staters across the country that might permit a state or municipal government to forcefully ban foie gras under traditional state and local police powers of health and safety regulation.[12] Worse still, if the USDA were to buy the argument, foie gras could be banned from American shores for good.

But what’s often left out of the debate is that there’s more than just food at stake. Lives and livelihoods are on the line too. “I’ve been living in the States for twenty-one years,” says Chef Didier. “I’ve been cooking for thirty years. We opened the restaurant almost eleven years ago.

“There are some nuts who want to introduce foie gras bans in many cities,” he says. “It looks like elected officials maybe don’t have the power to enforce bans. So they’re waiting for the Chicago ban [to play out], and go from there.”

NOTES [1]Unlike God at Eden, nanny staters are not God. When I think of nannying pests in this context, I’m reminded of the exchange in Ghostbusters, where a god named Zuul asks Dan Ackroyd’s Ray Stantz if he’s a god. When he says, no, Zuul replies, “Then die.” [2] Amazon.com offers 22-pounds of Canadian grade-A duck foie gras lobe for a mere $1,700. I’m hoping the DOUBLETHINK editors won’t notice this on my expense report. [3] Germany under Hitler — a vegetarian and nonsmoker — also later became the first country to launch a nationwide smoking ban. [4]Five, if you count the acts of terrorism carried out by anti-foie extremists against Aqua chef Laurent Manrique of California in 2003. [5]Whole Foods no longer sells live lobsters, either. I thought of this recently as I was cutting through the forehead and down the back of a live lobster, rinsing out its guts, replacing its innards with butter, and tossing its still-moving carcass onto my parents’ grill. [6] Chicago, once the tasty epicenter of animal processing in America, is now evidently home only to one such business, Chiappetti Lamb and Veal, on the city’s South Side. [7]The bust at Hot Doug’s, one of the city’s storied Chicago-style hot dog outlets, which openly served hot dogs containing foie gras, took place two days before I went to Chicago. Hot Doug’s, which has since removed foie from its menu, fabulously bills itself as a “Sausage Superstore and Encased Meat Emporium.” [8] In a jab at Alderman Moore, Copperblue serves an ‘“it isn’t foie gras any Moore’ duck liver terrine.” [9]Moore received 247 more votes than Gordon, who was endorsed by the Chicago Tribune, in a runoff election in April. Gordon has challenged the result in court, alleging that Moore engaged in electioneering and citing numerous other voting irregularities. [10]They also allege the ban is unconstitutional under the state’s constitution. [11]Several restaurants and other plaintiffs sued Tupelo, Mississippi, last year in another federal court, unsuccessfully seeking to overturn the city’s smoking ban on Commerce Clause grounds. [12]The only substantive difference between Chicago’s position and that advanced in an unsuccessful motion to intervene filed by HSUS and other animal-rights parties was the diseased-food argument

Baylen Linnekin wrote this item when he was a law student who blogged at crispyontheoutside.com. He now serves as executive director of Keep Food Legal, a food freedom non-profit. Foie gras image courtesy of Big Stock Photo.