United States District Court, N.D. California
ANIMAL LEGAL DEFENSE FUND, a non-profit corporation, and REGAL VEGAN, INC., Plaintiffs,
HVFG LLC, (d/b/a " Hudson Valley Foie Gras" ), MARCUS HENLEY, MICHAEL GINO, IZZY YANAY, and RICHARD BISHOP, Defendants
[Copyrighted Material Omitted]
For Animal Legal Defense Fund, a non-profit corporation, Regal Vegan, Inc., Plaintiffs: Nicole Alexandria Roth, LEAD ATTORNEY, Carter Dillard, Animal Legal Defense Fund, Cotati, CA; John P Melia, Cotati, CA.
For HVFG, L.L.C., doing business as Hudson Valley Foie Gras, Marcus Henley, Michael Ginor, Izzy Yanay, Richard Bishop, Defendants: Michael Tenenbaum, LEAD ATTORNEY, The Tenenbaum Law Firm, Santa Monica, CA.
WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
In this false-advertising action, plaintiffs assert that defendants' advertisements misrepresent the nature of defendants' pâ té . For the following reasons, defendants' motion to dismiss is Granted in part and Denied in part.
Plaintiffs Animal Legal Defense Fund, a California nonprofit corporation, and Regal Vegan, a New York corporation, allege that defendants Hudson Valley Foie Gras, LLC, a New York corporation, and four of its officers (collectively " Hudson Valley" ) violated the federal Lanham Act as well as California's unfair-competition and false-advertising laws by marketing their foie gras as " the humane choice." According to plaintiffs, this characterization misrepresents the truth because defendants' foie gras is not produced humanely.
Foie gras is a delicacy, which can also be called pâ té, produced from the livers of specially fattened ducks or geese (defendants raise ducks only). Hudson Valley's foie gras sells for approximately $80 per pound (Compl. ¶ ¶ 1-3). Plaintiffs describe defendants' foie gras production process as follows. When Hudson Valley's ducklings are three months old, they are moved into special feeding barns. There, they are restrained by the neck two or three times a day to be force-fed. The force-feeding involves an " inflexible, unlubricated tube [that] is forcibly inserted into their esophagi"
( id. ¶ 51). A large volume of corn mash is pumped directly into the ducks' stomachs, and the amount increases slightly every day. After about a month of force-feeding, the ducks are slaughtered. Some of the ducks die from the force-feeding before they can be slaughtered ( id. ¶ ¶ 49-57), although slaughter is timed to occur just before force-feeding typically becomes fatal ( id. ¶ 107).
The complaint asserts the following aspects of force-feeding ducks render it cruel and inhumane. Injuries and illness commonly result from the force-feeding itself, including ruptured esophagi, bone fractures, inhalation of food into the lungs, and bacterial infection (Compl. ¶ 61). Then, because the ducks are forced to consume an unnaturally large quantity of food, their livers become greatly enlarged, resulting in hepatic lipidosis, which causes liver failure as well as seizures and nervous system impairment ( id. ¶ ¶ 64-79). Finally, the extremely swollen liver may lead to difficulty breathing, severe pain from the liver's capsule stretching, and broken legs as a result of the excess body weight ( id. ¶ ¶ 80-105). Because foie gras ducks are not given veterinary care, they may suffer with these injuries and diseases for up to four weeks until they die or are slaughtered ( id. ¶ 63).
In 2004, California enacted a law that banned force-feeding birds for the purpose of producing an enlarged liver, as well as the sale in California of any products resulting from force-feeding. Cal. Health & Safety Code § 25980, et seq. It took effect in 2012. The delay was designed to allow California foie gras producers to find a humane way, other than force-feeding, to produce the desired fatty livers, but because no producer was able to develop such a method, there are no longer any foie gras producers in California (Compl. ¶ ¶ 143-45). Section 25980, however, does not prohibit out-of-state foie gras producers from marketing and shipping their products to California. Hudson Valley, the largest foie gras producer in the United States, markets its foie gras as " the humane choice" on its web page, its Facebook and Twitter pages, and in its printed marketing materials ( id. ¶ ¶ 12, 17-24).
Plaintiff Regal Vegan produces a non-meat, spreadable product called " Faux Gras." Because it is produced without animal byproducts, it is " undoubtedly humane" (Compl. ¶ 4). Regal Vegan sells Faux Gras in stores in Colorado and Washington, D.C., as well as online through its website. Regal Vegan argues that its sales of Faux Gras are competitively harmed by Hudson Valley's claim that its foie gras is humane. According to plaintiffs, Hudson Valley's foie gras is not humanely produced, and if consumers knew this, they would be more likely to buy Faux Gras ( id. ¶ ¶ 4, 10).
Plaintiff ALDF is a national nonprofit organization whose " main focus is the use of the legal system to assist courts and legislatures in preventing animal cruelty and advancing the protection of the interests of animals through the legal system" (Compl. ¶ 11). ALDF alleges it has spent considerable resources educating the citizenry about the cruelty inherent in foie gras production and requesting that the California Attorney General and the Better Business Bureau initiate false advertising actions against foie gras producers claiming their products are humane ( id. ¶ ¶ 5, 116-18).
Plaintiffs allege Hudson Valley's marketing violates the Lanham Act, 15 U.S.C. 1125, et seq. ; California's Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq. ; and California's False Advertising Law, Cal. Bus. & Prof. Code § 17500, et seq. Hudson Valley moves to dismiss on three grounds: (i) lack of Article III standing under Rule 12(b)(1); (ii) lack of
Lanham Act standing under Rule 12(b)(6); and (iii) failure to state a Lanham Act claim.
Regal Vegan's Article III ...