Chicago Ducks Atlantic Legal Appeal

Less than two weeks before the Foundation was to argue an appeal in the United States Court of Appeals for the Seventh Circuit in a case challenging the constitutionality of Chicagos ordinance banning the sale of foie gras in restaurants in that city, the Chicago City Council overwhelmingly voted to repeal the ordinance.

The foie gras ban was enacted almost two years ago, and was promptly challenged by the Illinois Restaurant Association and a local restaurant on the grounds that the local law impermissibly interfered with and burdened interstate commerce. At the trial court level, the association and the restaurant were represented by the Chicago office of a national law firm. The district court found in favor of the City, holding that, because the ban did not discriminate in favor of local business, it did not violate the Interstate Commerce clause of the U.S. Constitution. The law firm asked Atlantic Legal to become co-counsel, and subsequently lead counsel, on the appeal.

On the appeal, we argued that, under U.S. Supreme Court precedent, state or local laws that excessively burdened interstate commerce, but are not discriminatory, had to be examined under a balancing test that weighed the local interest against the burden on commerce. In this case the ban was enacted not to protect the health or safety of Chicagoans, or even to ensure humane treatment of local animals, but rather as a protest against the inhumane treatment of ducks and geese in the process of making foie gras, a product that is produced exclusively in other states and foreign countries. The local interest was so minimal and ephemeral, we argued, that it did not justify the bans substantial negative impact on interstate and foreign commerce.

Because the ban was repealed, the appeal becomes moot, and we have asked the appellate court to dismiss the appeal and to remand the case to the district court with instructions to dismiss the case without prejudice.

The case is Illinois Restaurant Association, et al. v. City of Chicago, No. 07-2605 (U.S. Court of Appeals, 7th Circuit).