Law For Food: The law affects what you eat. What you buy to eat affects the law.

Bourdain is Right
15 October 2007, 7:17 pm
Filed under: Economics of Eating, Ethics of Eating, fois gras, Meat, the-small-laws

About Fois Gras, at least.

Although not universally accepted in negligence suits, the Learned Hand formula for determining liability serves as an illuminating tool to show that banning fois gras is not a good use of political capital, assuming that one’s objective is to minimize the suffering of the animals intended for human consumption.

Hand’s formula is as follows: where an actor’s burden (i.e., the cost of preventing a particular harm) is less than the probability that the harm will occur multiplied by the loss the harm will incur if it takes place, the actor is liable to take steps to prevent the harm. It is often represented as

B < pl

Thus, where a harm is unlikely to occur, an actor needn’t spend much to prevent it, unless the harm will be costly if it does occur. Indeed, spending resources on unlikely harms is inefficient.

Unfortunately, humans are susceptible to something called the Availability Heuristic, which is the name for the tendency of humans to fear vivid harms (such as dying in a plane crash) over common ones (such as dying in a car accident) without taking into account the relative probabilities that these harms will occur.

While fois gras opponents aren’t seeking to determine liability, the Hand formula remains useful for comparing the harm of fois gras to the other possible harms worth protesting throughout the industrialized food supply. Feedlot overcrowding, for instance, is far more widespread, both in terms of total number of animals, and of total biomass affected, than fois gras production, and the amount of suffering per animal is at least as bad.

According to one estimate, world fois gras production in 2005 was 23,500 pounds. At 2 lbs/bird (a reasonable estimate, I am given to believe), that’s 12,250 birds per year. In the world.

By contrast, in 2003 10.7 Million cattle alone were raised in large feedlots, according to the USDA, and this number only represented one third of the 33 Million total cattle raised in the U.S. This does not take into account the number of pigs and sheep raised in feedlots in the U.S., or the cattle, sheep, and pigs raised in the rest of the world.

Thus, the number of creatures affected by fois gras production is substantially smaller than the number of creatures affected by feedlot practices.

It now falls to us to consider whether the harm done to fois gras birds may be so severe as to outweigh, when aggregated, the harm done to feedlot cattle when aggregated.

According to this study, geese and ducks do not exhibit the signs of being harmed when raised in conditions similar to those used to produce fois gras, compared to a control group. I found it notable that the animals do experience stress the first time they are tube-fed, but that these stress levels do not recur with subsequent feedings. Additionally, while I don’t think the practice is widespread, and while it won’t qualify for French AOC fois gras, the “overfeeding” of fois gras birds may be something that they would do for themselves anyway.

Moreover, it seems that many of the other incidental harms to these birds are not specific to fois gras production, but occur wherever there is overcrowding or wet bedding. I do not intend to disregard these harms, but simply to point out that it is possible to have these harms without raising fois gras, and that it appears to be possible to have fois gras without causing these harms, and that they are therefore causally disjunct.

In contrast, the harms suffered by feedlot cattle are well documented in books, reports, and websites, going back at least to Upton Sinclair’s The Jungle. I heartily recommend The Ethicurean for some good, current reading on this topic.

Thus it seems to me that fois gras raising is not intrinsically harmful to the birds raised in its production, and that people like Bourdain and Jamie Forrest may be right that a reduction in the number of animals raised in factory farms does more to eliminate animal suffering than an equivalent reduction in the number of animals used to produce fois gras. However, this is not the whole issue.

Tied to the availability heuristic are what economists call “outrage costs.” These are the political and other costs to regulators and reformers of ignoring the vivid but unlikely harms in favor of the mundane but common harms. It seems to me that it is easier to generate a groundswell of opposition to fois gras, which is an unfamiliar french-sounding food typically associated with people who own their own jets. It is probably more difficult to generate a groundswell of opposition to overcrowded feedlots when the immediate impact of such opposition would be an increase in the price of beef. Ultimately, opposition to fois gras seems to me a cynical exercise in political haymaking, rather than a considered attempt to reduce the suffering of animals raised for food.


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[…] the Learned Hand formula to foie gras: According to a wonderfully nerdy post at Law For Food, PETA should really be concentrating on improving feedlot conditions, instead of the low-hanging […]

Pingback by The Ethicurean: Chew the right thing. » Blog Archive » Digest - Blogs: Foie gras formula, we all (heart) Fergus Henderson

I have a problem with your where you state, “and the amount of suffering per animal is at least as bad.”

This, along with other language in the post, implies that foie gras production DOES inflict suffering that could be as bad as feedlot overcrowding. Part of the issue at hand is whether foie gras production inflicts suffering in the first place. Discomfort due to a first gavage feeding, in my opinion, does not equate to suffering. Nor does slaughter for food.

Comment by Curt


Thanks for writing. If you don’t think that being slaughtered for food constitutes suffering I suspect that we will have to agree to disagree. All animals suffer in their existence, and all animals die, and we don’t live in the kind of frictionless universe where the absence of suffering is a real possibility.

What I am concerned with, given the inevitabilities of suffering and of death, is whether on balance our actions in raising animals for food unacceptably or needlessly increase the animal’s suffering.

However, my piece above was not an attempt to write an ontology of suffering but to look at the balancing of harms which is the basis for good policymaking. The reason banning fois gras is a bad idea isn’t that the animals don’t suffer; it’s that they don’t suffer any more for being used to produce fois gras they would suffer otherwise.

You can produce fois gras in concentrated animal feeding operations, and you can produce it in humane conditions. Producing fois gras could easily cause just as much animal suffering as factory farming, and where it does, I oppose it on the same grounds that I oppose factory farming. The point isn’t that they don’t suffer; it’s that they don’t necessarily suffer any more than other animals. I suspect, as I said above, that we simply have different ideas of what it means for an animal to suffer.


Law for Food

Comment by lawforfood

Law for Food,

I have read similiar treatments of this argument in various contexts though they seldom take as respectful and thoughtful a tone as your’s. However, I do take issue with a couple of your points. Even if we discount the various documented examples of abuse that occur on foie gras farms, the argument that the birds are no worse off than in their natural environment seems specious at best. By the same logic, one could argue that taking a homeless person off the streets of your average metropolitan city and putting him or her in prison would be acceptable so long as their measured stress response was the same. I suspect many would reject that kind of analogy, pointing out that the homeless person’s rights would be violated, and that his or her experience is deeper than a hormonal response. Why do the same concerns not apply to animals in general and ducks in particular? When we consider animals’ interests at all we tend to use a purely utilitarian analysis that emphasizes our use of them over their experience which we presume to be little more than instinct and reflex responses. We struggle to empathize with members of our species; how can we expect to understand a duck’s response to confinement and force feeding? In our ignorance we ought to be conservative and not disregard these concerns without careful consideration.

All of this does not change your point. Foie gras production is orders of magnitude smaller than the chicken industry. One subtlety you did not consider, however, is whether foie gras production can be used a leverage issue to make people more responsive to animal welfare. As you argue, attacking the cattle or pork industries is much harder given their widespread prevalence, than a niche industry like foie gras. If you can rally support behind banning a product like foie gras, one could then make the connection to the beef/pork/poultry industries, demonstrating how the abuses seen in foie gras production are carried out on a far larger and more egregious scale on factory farms.

Thanks for the article.

Comment by Sean

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