Wade Clark Mulcahy LLP

New York City’s attempt to ban foie gras was once again found to unreasonably restrict and regulate farming operations in the State under Agricultural and Markets Law §305-a (“AML §305-a”).

AML §305-a creates a restriction upon local municipalities from creating restrictions or regulations on farm operations within agricultural districts, unless it can be shown that public health or safety is threatened. At any time, a farm owner or operator can request the Commissioner of Agriculture and Markets (“Commissioner”) to render an opinion as to whether changes in local regulations or laws concerning farming/agricultural practices would be unreasonably restricted.

In 2019, NYC adopted Local Law 202, which was designed to ban the sale of foie gras in the City for the purposes of animal welfare (a large majority of NYC residents supported the ban). Foie gras is often made through the force feeding of a goose or duck with the intention to artificially fatten the bird and increase its liver size tenfold. However, there are multiple farms within the State of New York which produce foie gras and requested that the Department of Agriculture and Markets (“Department”) and the Commissioner render such an opinion as to the validity of Local Law 202. (Of note, the farms that brought this request are located in Sullivan County, as there are no farms in New York City that produce foie gras.) Their argument is that this retail sale ban from the City created an unreasonable restriction or regulation and threatened the viability of these farms through the negative economic impact such a ban would have.

In multiple determinations from 2020 to 2023 by the Commissioner and the Department, the 2019 NYC Local Law 202 had been found to violate AML §305-a. Due to this, the City of New York brought the instant petition in Albany County.

The Albany County Supreme Court ruled against the City of New York, upholding the Commissioner’s and Department’s determinations that Local Law 202 is invalid under State law. The reasoning is that AML §305-a is not solely directed at local laws or regulations that directly govern or oversee local agricultural districts, but rather is broad and expansive in its language, inclusive of any local law or ordinance that creates an unreasonable regulation or restriction on any farm operation in any agricultural district in New York State.

Further, the legislative history of Local Law 202 does not cite any issues of health and safety to the public – which would be the only exception to AML §305-a after the ordinance was found to create the unreasonable restriction.

As such, at least until the matter is appealed, restaurant-goers and foodies of New York City can continue to dine on foie gras.

Thanks to William Healy for his contribution to this article.