The Chicago City Council's ban on restaurant sale of foie gras violates the Illinois constitution—at least according to a lawsuit filed on August 22—the day the ban went into effect.
The Illinois Restaurant Association and Allen's New American Cafe, a noted Gallery-district restaurant, filed the single count lawsuit in the Circuit Court of Cook County on Tuesday morning. It seeks a preliminary and permanent injunction halting enforcement of the sale ban.
"I am challenging this ban on behalf of all Chicago chefs and our patrons," says Chef Allen Sternweiler of Allen's New American Cafe. "The City Council has no business telling adults what they may have for dinner. Local government has no role in banning legal, approved, inspected and regulated food items. If this is allowed, what might be banned next?"
On April 26, the Chicago City Council voted overwhelmingly (49 to 1) in favor of a ban on the sale of foie gras—the enlarged fatty livers of geese and ducks. Led by far-north-side Alderman Joe Moore, the ordinance saw support from animal rights groups such as People for the Ethical Treatment of Animals (PETA) and Farm Sanctuary. Testimony from these groups included a graphic video of foie gras farms that strongly suggested animal cruelty—a matter not challenged in the recent lawsuit.
"The issue in this lawsuit is not whether the production of foie gras is or is not humane. The lawsuit is about the bounds of local governmental power," said Barry S. Rosen, a partner at Chicago's Sachnoff & Weaver, which represents the Illinois Restaurant Association and Allen's New American Cafe in the suit.
"Local governments are empowered under the Illinois constitution to deal with local problems," continues Rosen in a press release. "All of the foie gras sold in Chicago restaurants is lawfully produced in other states or countries. None is produced in Chicago. So, the City Council ban on restaurant sale is not designed to address any local problems, such as how animals are treated in Chicago. Since local governments are empowered by the Illinois Constitution to deal only with local issues, this ordinance is unconstitutional."
According to Rosen, the ordinance violates the state constitution, stating that the Illinois Constitution only permits municipalities to legislate regarding local problems and not activities that are more properly dealt with by other state or local governments.
"The City Council ban sets a dangerous precedent," argues Rosen. Were it to be upheld, any of the thousands of local governmental units in Illinois could prohibit the sale of all types of products that pose no health or safety concerns, just because their legislators disagree with the judgments of legislators elsewhere, who approved the way those products are made. That is not a proper function of local government."
"That argument holds no water," says Ald. Moore who has consulted with city lawyers convinced that the ban will hold up in court. "[In] local government, particularly here in Illinois, it's well within our power to regulate the sale of products the we feel are harmful. I think this is clearly an ordinance that can withstand judicial scrutiny and it will be upheld. The argument that they are claiming is almost frivolous in my opinion. We regulate the sale of products in the city of Chicago that aren't produced in the city all the time."
Outside of disagreement on legal matters, some argue that the ordinance will also hurt the bottom line for Chicago restaurateurs. "This is also a dollars and cents issue for us," says Colleen McShane, Illinois Restaurant Association president in a press release. "Banning this legally produced item wipes out more than $18 million of restaurant business, tax revenues, tips and related sales. It is a disaster for our customers, our members, our employees and our suppliers."
A press release for the lawsuit states that in the last 12 months, Chicago restaurants have sold at least $5.526 million worth of foie gras. With more than 420,000 servings presented in Chicago restaurants, foie gras is ordered in Chicago over 1,000 times per day.
In lieu of more pressing city concerns, Mayor Daley is also concerned about what the ban has cost the city. "When you pass laws that are silly it costs taxpayers money," he said.
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