I Filed Brief for Reason, Cato Urging Supreme Court to Take Up California Foie Gras Ban

Last week, Reason Foundation (the nonprofit that publishes Reason, where I write a weekly food-law column) partnered with the Cato Institute to file an amicus curiae brief with the U.S. Supreme Court in support of the foie gras producers and sellers who are challenging California’s foie gras ban. I was honored to be asked to write and submit (as a member of the Supreme Court bar) the brief. In March, the plaintiffs asked the Supreme Court to take up their appeal after the Ninth Circuit Court of Appeals last fall reversed a U.S. District Court ruling that had struck down the ban.

The possible implications of a state animal-rights law that interferes with interstate and foreign commerce in animal products are already reverberating. Last year, in separate lawsuits, each brought by more than a dozen states, California and Massachusetts were sued over respective animal-rights laws in those states that similarly discriminate against interstate and foreign commerce.

Together, the California and Massachusetts laws target eggs, pork, and beef sales. If it seems as if a couple states can do widespread and lasting damage to livestock farmers, retailers, restaurateurs, consumers, and food freedom across the country, then that’s also the reality. That’s also what makes this foie gras case so important.

"This brief supports Reason's commitment to 'Free Minds and Free Markets,'" says Manny Klausner, a former editor of Reason, a Reason Foundation co-founder and board member, and attorney, who joined me in filing the brief. "And it's particularly satisfying for Reason to file a Supreme Court brief defending liberty that quotes Thomas Jefferson and James Madison's opposition to bans on various types of foods and liquors as 'lunacy' and 'despotic'—and also cites Escoffier, Julia Child, and Thomas Keller!"

I am proud to have had the opportunity to work with Reason Foundation and The Cato Institute and to lend my voice to the chorus urging the Supreme Court to take up this important case.

I Organized Fellow Food Law & Policy Faculty to File Idaho Ag-Gag Amicus Brief

I'm excited to announce that this week I joined fourteen fellow Food Law & Policy faculty around the country in filing an amicus curiae brief in support of the plaintiffs in Animal Legal Defense Fund v. Wasden, a challenge by animal-welfare and free-speech advocates to Idaho's unconstitutional ag-gag law, a case that is now before the Ninth Circuit Court of Appeals. Our brief was written by Minnesota appellate attorney Mahesha Subbaraman.

Ag-gag laws, which are on the books in eight states, including Idaho, are laws that effectively ban journalists, whistleblowers, and activists from conducting or sharing the results of undercover investigations at agricultural and livestock processing facilities. In our brief, we argue that Idaho's ag-gag law violates the First Amendment because it unnecessarily burdens the rights of consumers to access information in the marketplace of ideas about the way livestock are treated--or, specifically, sometimes mistreated--during the time they are raised and slaughtered.

"By silencing journalists, whistleblowers, and activists, the ultimate effect of Idaho’s ag-gag law is to keep consumers in the dark about what goes on behind closed doors at agricultural and livestock processing facilities," said Subbaraman, the author of the brief. "Such censorship violates the First Amendment rights of consumers as much as it violates the First Amendment rights of journalists, whistleblowers, and activists."

In preparing the brief, my role was to recruit potential signers, organize our work, update the potential signers, serve as the point of contact between the brief author and brief signers, and consider and incorporate many of the signers' proposed edits.

In an email to my fellow signers announcing that the brief had been filed, I noted that the brief will be an important tool for fighting Idaho's ag-gag law. "More broadly," I noted, "I think our work on the brief shows the collaborative impact that we and others in our field can have on a variety of important Food Law & Policy issues in the future."

Read our brief here. For questions or comments on the brief, please contact me here.