ILLINOIS RESTAURANT ASS'N v. City of Chicago

MEMORANDUM AND ORDER

Foie gras, or “fatty liver,” is produced using the French practice of gavage, which involves feeding ducks or geese with the goal of fattening their livers. The practice dates back to at least Roman times, when Pliny the Elder wrote of the practice of feeding geese dried figs to enlarge their livers. Pliny the Elder, Natural History, Book VIII, Ch. 77 (Teubner ed.1909). In the nineteenth century, the debate over the propriety of the practice continued, as Jean Anthelme Brillat-Savarin sided with the geese and ducks, writing that “[t]hey have not only been deprived of the means of reproduction, but they have been kept in solitude and darkness, and forced to eat until they were led to an unnatural state of fatness.” Physiologie du goüt (The Physiology of Taste), sec. Ill (1825). On the other hand, his contemporary, Charles Gerard, called the goose “an instrument for the output of a marvelous product, a kind of living hothouse in which there grows the supreme fruit of gastronomy.” Charles Gérard, L’Ancienne Alsace á table (1862).

The debate rages on today, as the City of Chicago entered the fray in 2006 by enacting an ordinance banning the sale of foie gras at food dispensing establishments in the City. The Illinois Restaurant Association and Allen’s New American Café sued the City in state court, claiming that the foie gras ordinance exceeded the City’s police powers under the Illinois Constitution. The City removed this action after the plaintiffs amended their complaint to add a Commerce Clause claim arising under the federal Constitution. The City’s motion to dismiss for failure to state a claim is before the court.. For the following reasons, the court finds that the foie gras ordinance is consistent with the lili- *893 nois and United States Constitutions. Thus, the City’s motion to dismiss for failure to state a claim is granted in its entirety-

I. Background

The court will accept the allegations in the complaint as true for the purposes of the City’s motion to dismiss. On April 26, 2006, the City Council enacted Ordinance PO-05-1895 (“the Ordinance”), which became effective on August 23, 2006. First Amended Complaint (“FAC”) at ¶ 22, Ex. 1. The Ordinance amends the City’s Municipal Code to add a section prohibiting the sale of foie gras at “food dispensing establishments” within the City and provides that any business that violates the Ordinance is subject to a fine of between $250 and $500 per offense. FAC Ex. 1, §§ 7-39-001.1, 7-39-005. 1

The City of Chicago is a home rule unit under the 1970 Illinois Constitution. Id. at ¶ 1. Plaintiff Illinois Restaurant Association is an Illinois non-profit organization consisting of member restaurants, and its mission is to advocate the interests of its members in order to advance their economic interests. Id. at ¶ 18. A number of these restaurants — including plaintiff A.N.A.C. d/b/a Allen’s New American Café — are located in Chicago and, but for the Ordinance, would have continued to offer dishes containing foie gras to their patrons. Id. at ¶¶ 18-19.

Foie gras is not produced in Chicago or Illinois. Id. at ¶ 27. Instead, it is produced domestically at farms in California and New York and is produced and imported into the United States from farms in Canada and France. Id. ¶ 28. The production of foie gras in these out-of-state and foreign locations is lawful, and imported foie gras is subject to federal tariffs and other federal regulations allowing its importation for sale into the United States. Id. at ¶ 30, 33. Furthermore, the United States Department of Agriculture (“USDA”) has found that foie gras is safe for human consumption. Id. at ¶¶ 3, 58.

The parties offer differing characterizations of the City Council’s motives for passing the Ordinance. According to the plaintiffs, the City Council has never advanced any health, consumer protection, or fraud bases as justification for the Ordinance and no such justifications exist. Id. at ¶¶ 35-38. Instead, the Ordinance is a “moral statement” which was passed “because of the purportedly inhumane manner in which foie gras is produced.” Id. at ¶ 59, 4 (emphasis in original).

On the other hand, the City points to the “WHEREAS” clauses of the Ordinance, which note the City Council’s recognition that “the media has shed light on the unethical practices of the care and preparation of the livers of birds.” FAC Ex. 1. The City Council specifically focused upon the practice during which “[bjirds, in particular geese and ducks, are inhumanely force fed, via a pipe inserted through their throats several times a day, in order to produce a rare delicacy, foie gras, for restaurant patrons.” Id. With respect to that practice, the City Council identified a recent survey showing that nearly 80 percent of Americans oppose the treatment of geese and ducks whose livers become foie gras. Id.

The City Council also recognized that the City “is home to many famous restaurants offering the finest cuisine and dining *894 experiences to their customers,” and that “[millions of people visit Chicago every year, attending cultural events and dining in our legendary restaurants.” Id. The City Council then expressed its view that “[t]he people of Chicago and those who visit here have come to expect, and rightfully deserve, the highest quality in resources, service and fare” and concluded that “[b]y ensuring the ethical treatment of animals, who are the source of the food offered in our restaurants, the City of Chicago is able to continue to offer the best in dining experiences.” Id. The City then passed the Ordinance. Id.

The plaintiffs sued the City in state court, claiming that the Ordinance exceeded the City’s home rule powers under the Illinois Constitution. The City removed this action after the plaintiffs amended their complaint to add a commerce clause claim arising under the United States Constitution. The City presently seeks to dismiss the complaint in its entirety under Rule 12(b)(6), contending that it fails as a matter of law to state a claim for which relief may be granted.

II. Discussion

A. Standard for a Rule 12(b)(6) Motion to Dismiss

In ruling on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the court must assume the truth of all facts alleged in the complaint, construing the allegations liberally and viewing them in the light most favorable to the plaintiff. See, e.g., McMath v. City of Gary, 976 F.2d 1026, 1031 (7th Cir.1992). Dismissal is properly granted only if it is clear that no set of facts which the plaintiff could prove consistent with the pleadings would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). However, the court is neither bound by the plaintiffs legal characterization of the facts, nor required to ignore facts set forth in the complaint that undermine the plaintiffs claims. Scott v. O’Grady, 975 F.2d 366, 368 (7th Cir.1992).

B. The Illinois Constitution — Home Rule

The court, unlike the parties, begins by considering whether the Ordinance was properly enacted pursuant to the City’s home rule powers under the Illinois Constitution because federal “[e]onstitutional adjudication is a last resort, and courts should do what they can to decide on other grounds.” National Paint & Coatings Ass’n v. City of Chicago, 45 F.3d 1124, 1126 (7th Cir.1995) (district court should have considered whether Chicago’s spray paint ban was a valid exercise of home rule powers before addressing whether it violated the United States Constitution).

The plaintiffs contend that the Ordinance exceeds the City’s home rule powers because it is not aimed at a legitimate local problem and has an impermissible extraterritorial effect since it is meant to affect the production process of foie gras, which only occurs outside Chicago. Under the Illinois Constitution of 1970, “a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare....” 111. Const. Art. VII, § 6(a). The City “is a home rule unit of local government under the 1970 Illinois Constitution.” City of Chicago v. Roman, 184 Ill.2d 504, 512, 235 Ill.Dec. 468, 705 N.E.2d 81 (Ill.1998). Thus, the Ordinance does not violate the Illinois Constitution if it is within the scope of the City’s broad home rule powers.

The court begins with an overview of home rule. The Illinois Supreme Court *895 has emphasized that home rule units have expansive powers. Id. (“Section 6(a) gives home rule units the broadest powers possible”); Schillerstrom Homes, Inc. v. City of Naperville, 198 Ill.2d 281, 287, 260 Ill.Dec. 835, 762 N.E.2d 494 (2001) (same). Because home rule powers are “broad and imprecise in order to allow for great flexibility,” City of Evanston v. Create, Inc., 85 Ill.2d 101, 107, 51 Ill.Dec. 688, 421 N.E.2d 196 (1981), a home rule unit’s powers and functions “shall be construed liberally.” Ill. Const.1970 art. VII, § 6(m). Moreover, a home rule unit “has broad discretion to determine not only what the public interest and welfare require, but to determine the measures needed to secure such interest.” Chicago Nat’l League Ball Club, Inc. v. Thompson, 108 Ill.2d 357, 364, 91 Ill.Dec. 610, 483 N.E.2d 1245 (1985).

Because a home rule unit’s powers are so broad, the constitutionality of its ordinances does not turn on a court’s assessment of their wisdom or desirability. See Village of Glenview v. Ramaker, 282 Ill.App.3d 368, 371, 217 Ill.Dec. 921, 668 N.E.2d 106 (1st Dist.1996) (“Courts will not disturb an exercise of police power merely because there is room for a difference of opinion about the wisdom or necessity of its exercise”). Nevertheless, an ordinance enacted by a home rule unit must address a local problem, as opposed to a problem arising at the state or national level. Village of Bolingbrook v. Citizens Utilities Co., 158 Ill.2d 133, 138, 198 Ill.Dec. 389, 632 N.E.2d 1000 (1994). A problem can be local in nature even if it is also a state or national issue. See Scadron v. City of Des Plaines, 153 Ill.2d 164, 175, 180 Ill.Dec. 77, 606 N.E.2d 1154 (Ill.1992) (regulation of outdoor advertising promoted traffic safety and aesthetics and thus was a permissible use of home rule power even though “the proliferation of billboards may be a national and State problem”); City of Evanston v. Create, Inc., 85 Ill.2d 101, 111-14, 51 Ill.Dec. 688, 421 N.E.2d 196 (Ill.1981) (“[t]he mere existence of State interest and activity in a particular field does not alone preclude home rule activity” so Evanston’s landlord-tenant ordinance was a permissible use of home rule power because Evanston had an interest in regulating leases).

When determining whether an ordinance has a sufficient local angle for the purposes of home rule, the court must consider “[1] the nature and extent of the problem, [2] the units of government which have the most vital interest in its solution, and [3] the role traditionally played by local and statewide authorities in dealing with it.” Kalodimos v. Village of Morton Grove, 103 Ill.2d 483, 501, 83 Ill.Dec. 308, 470 N.E.2d 266 (1984). With these basic principles in mind, the court turns to the plaintiffs’ overlapping claims that the Ordinance is not aimed at a local problem and has an impermissible extraterritorial effect.

1. The Nature and Extent of the Problem

The Ordinance addresses sales of foie gras in Chicago and thus addresses a local aspect of the more general question as to whether foie gras should be available at the state or national level. See Village of Bolingbrook v. Citizens Utilities Co. of Illinois, 158 Ill.2d at 139-41, 198 Ill.Dec. 389, 632 N.E.2d 1000 (despite existence of state laws governing the disposal of waste and sewage, Bolingbrook’s ordinance assessing fines based on the disposal of certain sewage was a proper exercise of its home rule powers because it had the authority to regulate within its boundaries). This is so even though foie gras sales are lawful elsewhere, as the fact that conduct is lawful outside the jurisdiction does not bar a home rule unit from enacting legisla *896 tion which controls conduct inside its borders. Kalodimos v. Village of Morton Grove, 103 Ill.2d at 503-05, 83 Ill.Dec. 308, 470 N.E.2d 266 (Morton Grove’s handgun ban addressed local problem because it did not regulate conduct outside of its boundaries).

Similarly, the federal government’s regulation of the safety of foie gras consumption does not preempt regulation of sales at the local level because Chicago is not enacting legislation directed at whether foie gras is fit for consumption. See id. at 503, 83 Ill.Dec. 308, 470 N.E.2d 266 (local governments may enact their own solutions to problems “in the face of less stringent or conflicting State regulation, following a determination that the State’s expression of interest in the subject as evidenced by its statutory scheme did not amount to an express attempt to declare the subject one requiring exclusive State control”); Scadron v. City of Des Plaines, 153 Ill.2d at 186, 180 Ill.Dec. 77, 606 N.E.2d 1154 (“home rule units may exercise any nonexclusive power concurrently with the state, provided such power has not been specifically limited”).

Moreover, the Ordinance states that because the vast majority of Americans oppose foie gras production, banning foie gras will enhance the reputation of restaurants in Chicago. Contrary to the plaintiffs’ position, the City’s expressed desire to use a foie gras ban to make a statement about the methods used to produce foie gras is a local interest since local political bodies traditionally enact legislation reflecting the perceived desires of their constituency, and the Ordinance reflects the City Council’s belief that a majority of Chicagoans want to ban foie gras sales in Chicago. See City of Evanston v. Create, Inc., 85 Ill.2d at 113-14, 51 Ill.Dec. 688, 421 N.E.2d 196 (“the local governing body can create an ordinance specifically suited for the unique needs of its residents and is keenly and uniquely aware of the needs of the community it serves”).

The Ordinance thus reflects the City Council’s judgment that banning the sale of foie gras would benefit the City and advance the morals of the community. The court cannot sit as a superlegislature and determine if, in its judgment, the City Council was correct. Chicago Nat. League Ball Club, Inc. v. Thompson, 108 Ill.2d at 364, 91 Ill.Dec. 610, 483 N.E.2d 1245 (“the legislature has broad discretion to determine not only what the public interest and welfare require, but to determine the measures needed to secure such interest”); Village of Glenview v. Ramaker, 282 Ill.App.3d 368, 371, 217 Ill.Dec. 921, 668 N.E.2d 106 (1st Dist.1996) (declining to strike down an ordinance prohibiting residents from keeping swine within village because, among other things, “[cjourts will not disturb an exercise of police power merely because there is room for a difference of opinion about the wisdom or necessity of its exercise”). In other words, the Ordinance’s constitutionality does not depend on whether the court or the parties agree as to its wisdom. See id. The plaintiffs’ numerous arguments regarding the desirability of a foie gras ban are, therefore, beside the point.

2. Who Has the Most Vital Interest in the Problem and Who Traditionally Deals With The Problem

The court next considers whether the Chicago City Council is the unit of government with the most vital interest in solving the problem at the heart of the Ordinance. Because the Ordinance regulates food which may be served in Chicago restaurants and sold in Chicago grocery stores, the Chicago City Council clearly meets this standard. See Village of Bolingbrook v. Citizens Utilities Co., 158 Ill.2d at 139- *897 41,198 Ill.Dec. 389, 632 N.E.2d 1000. It is also the proper authority to address the problem because it is uniquely situated to govern the conduct of Chicago business establishments. See id.

This is true even if Chicago’s ban has effects outside the jurisdiction (such as reducing the national consumption of foie gras), because, as discussed above, a law’s potential extraterritorial effects do not cancel out its local aspects and render Chicago powerless to address a perceived local problem. See Kalodimos v. Village of Morton Grove, 103 Ill.2d at 504-05, 83 Ill.Dec. 308, 470 N.E.2d 266 (Morton Grove’s ban of operable handguns addressed the local interest of controlling guns even though it had the secondary effect of causing people carrying guns to route themselves around Morton Grove). In addition, the City’s home rule powers enable it to prohibit the sale of foie gras even though it cannot regulate the production of foie gras outside its borders. See id. (“The grant of home rule powers contemplates that different communities which perceive a problem differently may adopt different measures to address the problem, provided that the legislature has taken no affirmative steps to circumscribe the measures that may be taken and that the measures taken are reasonable”). In this regard, the court notes that the Ordinance governs the sale of foie gras in Chicago, and does not regulate the treatment of ducks or geese located in the United States or elsewhere.

Accordingly, for the above reasons, the court finds that despite the Ordinance’s extraterritorial effects, it is a valid exercise of Chicago’s home rule powers under the Illinois Constitution because it is aimed at a sufficiently local problem. It thus reaches the argument to which the parties have devoted most of their energies: whether the Ordinance violates the United States Constitution.

C. The Federal Constitution — The Dormant Commerce Clause

The United States Constitution gives Congress the power to “regulate Commerce with foreign Nations, and among the several States.” U.S. Const. Art. I, § 8. This portion of the Constitution is known as the Commerce Clause. Although the Commerce Clause does not limit the States’ power to regulate commerce, it “has long been recognized as a self-executing limitation on the power of the States to enact laws imposing substantial burdens on [interstate] commerce.” S.Cent. Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 87, 104 S.Ct. 2237, 81 L.Ed.2d 71 (1984). “This ‘negative’ aspect of the Commerce Clause is often referred to as the ‘Dormant Commerce Clause’ and is invoked to invalidate overreaching provisions of state regulation of commerce.” Alliant Energy Corp. v. Bie, 330 F.3d 904, 911 (7th Cir.2003); American Trucking Ass’n v. Mich. Pub. Serv. Commission, 545 U.S. 429, 433, 125 S.Ct. 2419, 162 L.Ed.2d 407 (2005).

The dormant Commerce Clause is generally analyzed using a two-tier approach. Under the first tier, the court must determine if the law at issue “directly regulates or discriminates against interstate commerce” or if “its effect is to favor in-state economic interests over out-of-state interests.” Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 579, 106 S.Ct. 2080, 90 L.Ed.2d 552 (1986); Oregon Waste Systems, Inc. v. Department of Environmental Quality of Oregon, 511 U.S. 93, 99, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994) (discrimination “means differential treatment of instate and out-of-state economic interests that benefits the former and burdens the *898 latter”). Discriminatory laws motivated by “simple economic protectionism” are subject to a “virtually per se rule of invalidity,” Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978), which can only be overcome’ by a showing that the State has no other means to advance a legitimate local purpose, Maine v. Taylor, 477 U.S. 131, 138, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986).

On the other hand, if a law indirectly affects interstate commerce and regulates evenhandedly, the line of cases which form the second tier potentially come into play. These cases require the court to examine whether the State’s interest is legitimate and whether the burden on interstate commerce clearly exceeds the putative local benefits. Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970) (“Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits”); United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Management Authority, - U.S. -, 127 S.Ct. 1786, 1792-93, 167 L.Ed.2d 655 (2007) (per Chief Justice Roberts, with three Justices concurring and one Justice concurring in judgment) (the Pike balancing test governs nondiscriminatory laws which are “directed to legitimate local concerns” and have incidental effects on interstate commerce). Under Pike, a court must uphold a law “unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.” Id.

The parties vigorously dispute what analysis is appropriate after the court determines that a law does not directly regulate or discriminate against extraterritorial commerce. The City contends that the Pike balancing test is not necessarily used across the board to evaluate all nondiscriminatory laws. 2 If this is the case, the dormant Commerce Clause is not triggered so the law cannot run afoul of the dormant Commerce Clause. The applicability of Pike is a central issue which is hotly debated in this case, as the plaintiffs champion the view that a law is either discriminatory or it’s not, and if it’s not, Pike balancing is mandatory. Regrettably, the cases in this area are less than clear. See West Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 210, 114 S.Ct. 2205, 129 L.Ed.2d 157 (1994) (Scalia, J., concurring in the judgment) (“Applying this [the standard two-tier] approach — or at least the second part of it — is not always easy, since once one gets beyond facial discrimination our negative-Commerce-Clause jurisprudence becomes (and long has been) a ‘quagmire.’ ”), quoting Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 458, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959). Nevertheless, for the following reasons, the court finds that the Ordinance does not violate the dormant Commerce Clause because it does not regulate or discriminate against interstate commerce and Pike balancing is not required.

1. Does the Ordinance Directly Regulate or Discriminate Against Extraterritorial Commerce?

As noted above, a law that directly regulates interstate commerce or that treats local economic interests differently from extraterritorial interests in a manner “that *899 benefits the former and burdens the latter” is invalid. Oregon Waste Systems, Inc. v. Department of Environmental Quality of Oregon, 511 U.S. at 99. The plaintiffs argue that even though the Ordinance is facially neutral, it was meant to create an economic boycott and thereby negatively affect the foie gras industry, which is located outside Illinois. Thus, the plaintiffs conclude that it regulates extraterritorial interests and, therefore, violates the dormant Commerce Clause. In response, the City contends that the Ordinance merely regulates the sales activity of food dispensing establishments within the City and thus does not regulate interstate commerce.

The court finds that the fact that the Ordinance has an economic effect on out-of-state foie gras production does not mean that it regulates or discriminates against interstate commerce. Specifically, the Ordinance prevents people from ordering foie gras in Chicago restaurants and thus prevents out-of-state foie gras from landing on restaurant diners’ plates in Chicago. 3 It thereby chips away at the foie gras producers and distributors’ profits. However, it does not govern foie gras production or pricing. Thus, it neither regulates nor discriminates against interstate commerce. See National Solid Wastes Management Ass’n v. Meyer, 63 F.3d at 652, 658 (7th Cir.1995) (a Wisconsin statute conditioning the use of Wisconsin landfills by non-Wisconsin waste generators on their adoption and enforcement of Wisconsin recycling standards directly regulated interstate commerce because it “impose[d] the requirements of Wisconsin law on numerous waste generators who neither reside, nor dispose of their waste in Wisconsin”); Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U.S. at 579-80, 106 S.Ct. 2080 (New York’s facially neutral liquor affirmation statute violated the dormant Commerce Clause because it effectively regulated the price of liquor sold out of state by requiring distillers to affirm that they would not sell anywhere in the United States for less than the posted price in New York and thus prevented distillers from reducing their prices in other States during the period that the posted New York price was in effect).

The plaintiffs disagree with this conclusion, arguing that the Ordinance’s negative economic effect on out-of-state foie gras production means it discriminates against interstate commerce. In support, they direct the court’s attention to Nat’l Foreign Trade Council v. Natsios, 181 F.3d 38 (1st Cir.1999), aff'd sub nom. on conflict preemption grounds, Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000).