A federal court in California has dismissed with prejudice a complaint filed by groups concerned about ducks force-fed to produce foie gras against the U.S. Department of Agriculture (USDA) and its Food Safety and Inspection Service (FSIS), seeking to compel FSIS to ban force-fed foie gras from the human food supply as adulterated and diseased. Animal League Def. Fund v. USDA, No. 12-4028 (U.S. Dist. Ct., C.D. Cal., decided March 22, 2013). FSIS denied a petition to take such action, and the plaintiffs filed the lawsuit to challenge the legality of that denial under the Administrative Procedure Act.
According to the court, while an agency’s denial of a petition for rulemaking can be challenged in court, the plaintiffs here did not ask FSIS to promulgate a new rule. “Though titled ‘PETITION FOR RULEMAKING,’ Plaintiffs’ request seeks to ban force-fed foie gras under existing law and regulations: it is not a request to make new rules or modify existing rules.” The court also noted, based on their “voluminous submission of technical papers and data,” that the controversy involved a challenge to a scientific conclusion rather than a legal one, thus presenting “an issue falling squarely under the USDA’s discretion by law. And because there are no legal issues to be considered concerning the USDA’s petition denial, Plaintiffs are not entitled to judicial review under 5 U.S.C. § 702.”