It sounds so cute — to feed ducks by hand. Picture the little ducklings eating grain out of the palm of your hand. But that’s not what Association Des Eleveurs De Canards Et D’oies Du Quebec v. State of California is about.

MOULARD DUCKS

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Moulard ducks are a hybrid of Muscovy male ducks and Pekin female ducks. They are bred for their capacity of ingestion and fat storage in their livers. The plaintiffs in this case, the Canadian Farmers, breed Moulard ducks for the foie gras they produce for making duck pâté. There’s nothing wrong with duck pâté, yum, yum … until you learn how it is made.

The Canadian Farmers start feeding their Moulard ducklings pellets from feeding pans — from the day they are hatched to three months — fattening them up.

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GAVAGE

The last stage of the process is called gavage (introduction of material into the stomach by a tube), which lasts for another two weeks: the ducks are hand fed by feeders who use “a tube to deliver the feed to the crop sac at the base of the duck’s esophagus.” That’s the controversy.

The force-feeding enlarges the duck’s liver which can be made into pâté. Gavage is the preferred way of making pâté if you’re in the business. The technique dates back to the ancient Egyptians in 2500 B.C.

FORCE-FED BIRDS LAW

In response to an outcry of animal cruelty, California passed several laws in 2005, effective in 2012, entitled “Force Fed Birds” in the Health and Safety Code, prohibiting force feeding of birds.

Producers had several years to “modify their business practices” as described in the legislative history.

One statute prohibited anyone from “force feeding a bird for the purpose of enlarging its liver beyond normal size.” Another made it illegal in California to sell a force-fed bird.

FOIE GRAS CHALLENGE

The Canadian Farmers waited until July 1, 2012 when the new laws became effective, then immediately sued the State challenging the anti tube-feeding codes.

First, they argued the new laws were overbroad because they prohibited the sale of all products from force-fed birds including duck breasts and down jackets.

The Court of Appeal threw out that spurious argument. The Court also ruled there is no ambiguity in the wording of the statute. I agree.

Next, the Canadian Farmers claimed the statute unfairly discriminated against non-Californians. The Court of Appeal noted that between the two statutes, they prohibit force-feeding birds in California and prohibit selling tube-fed birds in California — without discrimination against Canadians or anyone else.

Finally, the Canadian Farmers argued the new laws amount to a complete import and sales ban on foie gras. The Court of Appeal made short shrift of that contention, concluding it is perfectly legal to raise ducks for foie gras or pâté, you just can’t force-feed them with tubes stuck down their throats.

ANIMAL CRUELTY

While the Canadian Farmers acknowledged that California has an interest in preventing animal cruelty, they argued that preventing the sales of products produced by force-feeding birds “does nothing” to prevent animal cruelty.

Nice try Canadians. What else you got? The Court pointed out that the prohibition of animal cruelty has a long history in American law starting with early settlement of the Colonies.

DUCK PATE

Bottom line, you can still buy foie gras or duck pâté in California but not from ducks that have been force-fed for the purpose of enlarging their livers. To my knowledge, Nevada does not have a similar law.

FORCE FEEDING OF HUMANS

Believe it or not, according to Wikipedia, force feeding of humans has played a role throughout history. In the United Kingdom, force-feeding was used against hunger-striking suffragettes, until the Cat and Mouse Act of 1913.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He may be reached at porter@portersimon.com or at the firm’s website http://www.portersimon.com. Find us on Facebook.