A California appeals court has rejected a Napa restaurant’s attempt to circumvent the state’s foie gras ban by describing it as a gift for ordering another dish then arguing that a resulting suit brought by the Animal Legal Defense Fund (ALDF) seeking an injunction was merely a strategic lawsuit against public participation (SLAPP) in violation of the state anti-SLAPP statute. Animal Legal Def. Fund v. LT Napa Partners LLC, No. A139615 (Cal. Ct. App., order entered March 5, 2015). Additional information on the foie gras ban, which a California federal court struck down in January 2015, appears in Issue 550 of this Update.

Kenneth Frank, the head chef at Napa’s La Toque restaurant, was a vocal opponent of California’s foie gras ban; he testified at state senate hearings, participated in public debates and authored a newspaper opinion piece on the subject. On three occasions, ALDF sent an investigator to La Toque after the prohibition took effect and asked for foie gras, and the investigator was apparently told twice that he could receive foie gras as a gift from the chef if he ordered an expensive tasting menu. After ALDF reported its findings to law enforcement and the city attorney declined to pursue legal action, the organization brought a lawsuit alleging unfair competition. Frank and LT Napa Partners, owner of La Toque, moved to strike the action as a SLAPP, and the trial court denied the motion; they appealed that denial, arguing that serving the foie gras constituted actions protected by the First Amendment because it furthered the chef’s public opposition of the ban—his “way of dumping tea in the harbor,” according to a declaration.

The appeals court first assessed whether ALDF had standing to pursue the unfair competition claim. Its standing, ALDF argued, comes from the diversion of resources that La Toque’s distribution of foie gras caused the organization. The restaurant argued that ALDF manufactured its standing by initiating the investigation, but the court found that the organization could prove that it had “a genuine and longstanding interest in the effective enforcement of the statute and in exposing those who violate it,” and the restaurant’s actions impeded ALDF’s ability to focus its efforts on advocating for similar bans in other states or at the federal level.

The court then looked at whether the “gift” of foie gras constituted a sale. Arguing that the foie gras was not listed on the menu and the restaurant did not charge a separate price for it, Frank and LT Napa asserted that it was not provided for a price. The court likened the “gift” to promotions at other etablishments that provide “complimentary” alcohol with another purchase, noting that California viewed such pairings as sales subject to liquor licensing laws despite no separate charge for the alcohol beverage. Because the foie gras “gift” was a sale, ALDF could show that it had a prima facie case, the court found, and it could not be disposed of via an anti-SLAPP challenge.