graphic image depicting green amicus briefs for Atlantic Legal Foundation Amicus Brief Summary

Banning Foie Gras and the Commerce Clause

Foie gras is a delicacy produces from the livers of duck or geese, which until recently was available at many of the premier restaurants in Chicago. Foie gras sold in Chicago is imported from France, Canada, and New York. The City of Chicago enacted an ordinance that banned the sale of foie gras in restaurants (but not grocery stores) to make a political statement by creating a government mandated economic boycott of out-of-state persons who produce foie gras. The City Council passed this ordinance because they believed the process is cruel to animals, while the language of the statute states the purpose is to ensure “the ethical treatment of animals” which must apply to out of state persons, because foie gras is not produced in Illinois and the animals are dead when they arrive at and later served at restaurants. 

Plaintiff-Appellants Illinois Restaurant Association filed suit in the Chancery Dicision of the Circuit Court of Cook County, Illinois, asserting that the Ordinance exceeded the scope of the City’s authority under the Home Rule provisions of the Illinois Constitution. Appellants amended their claim to include a dormant commerce clause claim.  The city removed the case to federal court and moved to dismiss the Complaint. The district court granted the motion to dismiss, holding that because the ordinance did not discriminate between in-state and out-of-state interests it is not per se invalid under the commerce clause. The court chose not to engage in any further analysis under the commerce clause. This appeal followed. 

Issue Areas:

Free Enterprise, Limited Government

Question(s) Presented:

1. Whether the district court erred in dismissing Appellants’ claims under the Commerce Clause of the United States Constitution without conducting the “balancing” test articulated in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).

2. Whether the district court erred in dismissing Appellants’ claims under the Commerce Clause of the United States and holding that the City of Chicago ordinance banning the sale of foie bras in restaurants in Chicago does not discriminate against out-of-state interests and does not burden interstate commerce. 

Additional Background:

In Pike, a leading Commerce Clause case remembered fondly (or perhaps not) by generations of law students, the Supreme Court held that:


Where the statute regulates even-handedly to effectuate a legitimate local public interest and its effects on interstate commerce are only incidental it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. . . . If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.

ALF’s Amicus Brief:

ALF, representing the Appellants, contend that the Supreme Court uses a two-tiered approach when scrutinizing laws that may violate the dormant Commerce Clause. The first tier per se condemns laws that facially discriminate against our of state interests. The second tier applies a balancing test from Pike to determine whether the burdens the ordinance places on interstate commerce are justified by the local benefits. Because the district court chose not to apply the balancing test in Pike it should be overturned.

The district court chose not to apply Pike because, according to them, absent discrimination there is no need for balancing. This ignores the two tiered approach mandated by Supreme Court jurisprudence. A law may appear facially neutral but in effect burden out of state commerce substantially with little or no local benefit and be condemned under Pike


On June 12, 2007, the Seventh Circuit held that impacting the profits of out of state interests is permissible under the Commerce Clause.

Date Originally Posted: December 14, 2007

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