The legislative context of foie gras in Switzerland
Switzerland’s commitment at the international level
The GATT agreements
GATT agreements have been part of the WTO treaty since 1994
Switzerland is a signatory to the General Agreement on Tariffs and Trade (GATT) and the World Trade Organisation (WTO) treaty. As a result, it must comply with the rules of free trade. It cannot therefore prohibit or restrict trade in goods or services. However, Article XX of the GATT agreements describes the exceptions to this free trade obligation:
Article XX: general exceptions
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:
(a) necessary to protect public morals;
(b) necessary to protect human, animal or plant life or health;
[...]
Sub-paragraph (b) could not be invoked, since banning foie gras would not directly protect the health of animals, since production is already prohibited in Switzerland. On the other hand, foie gras could be prohibited by invoking subparagraph (a): the protection of public morals. Indeed, if force-feeding is prohibited in Switzerland, it is because it is considered to be animal abuse and therefore contrary to public morality. It can therefore easily be argued that the trade in foie gras is also contrary to public morality. In addition, this article has already been successfully used for seal products, which were banned in Europe in 2013 on the grounds of public morality. Switzerland subsequently banned these products as well.
Other international treaties
Switzerland is not part of the European Union (EU). It therefore does not have the trade agreements enjoyed by EU member states. It must therefore sign specific treaties known as bilateral agreements with the EU, but also with other countries or groups of countries (USA, China, etc.).
The main bilateral agreements between Switzerland and the EU:
the 1972 free trade agreement (EFTA-EU)
the Insurance Agreement of 1989
the Bilateral Agreements I, signed on 21 June 1999
the Bilateral Agreements II, signed on 26 October 2004
the agreement on the mutual recognition of protected designations of origin (PDOs) and protected geographical indications (PGIs) for agricultural products and foodstuffs, signed in 2011
the agreement on competition, signed in 2013
Bilateral agreements with the EU deal in particular with trade in agricultural products and protected designations (PGI, PDO). For example, French foie gras imported with the label IGP foie gras du Sud Ouest is made according to a perfectly known and described process (gavage).
The PGI label is protected by bilateral agreements
The Council of Europe
Switzerland has been a member of the Council of Europe since 1963. The recommendations issued by the Council of Europe are therefore binding on Switzerland. Naturally, these Recommendations are issued in agreement with the 47 members of the Council of Europe. The 1999 Recommendations on foie gras are therefore applicable to Switzerland, which implements them via the AniWA (Animal Welfare Act) and its ordinance by prohibiting force-feeding. However, there is nothing to prevent Switzerland from going further, for example by participating in research on alternatives to force-feeding, as stipulated in the Recommendations, or by banning the trade in foie gras altogether.
On the other hand, as Switzerland is not a member of the EU, it is not affected by Regulation 543/2008/EC, which defines foie gras as a hepatic liver with a minimum weight, i.e. obtained by force-feeding. It could therefore fully authorise the designation foie gras for products that are not obtained in this way: for example foie gras produced without force-feeding, plant-based alternatives or products from cell culture.
The Swiss Constitution
The Swiss Constitution of 18 April 1999, Article 80:
1. The Confederation shall legislate on the protection of animals.
2. It shall in particular regulate:
the keeping and care of animals;
experiments on animals and procedures carried out on living animals;
the use of animals;
the import of animals and animal products;
the trade in animals and the transport of animals;
the killing of animals.
3. The enforcement of the regulations is the responsibility of the Cantons, except where the law reserves this to the Confederation.
The Constitution only stipulates that the Confederation shall legislate on the protection of animals in general. It states that "the import of products of animal origin" is within its competence. It is therefore at the federal level that action must be taken if we wish to ban foie gras.
The Animal Welfare Act
The Animal Welfare Act (AniWA) of 16 December 2005, article 14:
1. For reasons of animal welfare, the Federal Council may attach conditions to, restrict or prohibit the import, transit and export of animals and animal products. The foregoing does not apply to kosher or halal meat in order to ensure an adequate supply of such meat to the Jewish and Muslim communities. Authorisation to import and obtain such products is restricted to members of these communities and associated legal entities and partnerships.
2. The import, transit and export of cat and dog pelts and products made from them is forbidden, as is trade in pelts and products of this kind.
It should be noted that the AniWA does not explicitly prohibit any particular practice. Force-feeding is therefore prohibited only by interpretation of the law. We will see below that this is confirmed by the implementing order. It should be noted that paragraph 2 comes from a parliamentary motion initiated by Luc Barthassat, following a petition launched by the association SOS Chats de Noiraigue. A similarly worded article concerning foie gras would make it possible to achieve a ban on foie gras in Switzerland.
The National Council
The Animal Protection Ordinance
The Animal Protection Ordinance (OPAn) of 23 April 2008, article 20:
Art. 20 - Prohibited practices on domestic poultry
In addition, it is forbidden to perform the following operations on domestic poultry:
a. cut off its beak ;
b. to cut off its head and wing growths;
c. placing glasses or contact lenses or other means of contact with the bird.
auxiliary devices that prevent the spout from closing ;
d. depriving it of water to induce moulting;
e. force-feeding;
f. plucking live poultry.
Since this ordinance, there is no longer any doubt that force-feeding is prohibited. This makes it even more hypocritical to import and trade this product in Switzerland. There is also a ban on live plucking. Goose feathers from Hungary are therefore, from a legislative point of view, in the same situation as foie gras.
The Federal Parliament in Bern
Other parliamentary objects
Here are a few objects of interest to our matter, still in progress or already settled.
Motion Maeder: ban on importing foie gras
Motion 91.3338, was tabled on 03.10.1991 by Herbert Maeder, and was withdrawn on 29.09.1993.
Text tabled:
The Federal Council is responsible for drawing up the legal basis for a general ban on the import of foie gras of all animal species.
At the time, the Federal Council opposed this motion, explaining that it was contrary to the GATT agreements. It addressed the question of the exceptions in Article XX, and explained that paragraph (b) does not apply in this case, which is true: a ban on foie gras does not directly protect the life of animals. However, the Federal Council did not mention paragraph (a) on public morality. Since then, we have seen that this paragraph has made it possible to have seal products banned in the EU.
Another reason for the rejection of this motion is due to the blackmail that France had exerted against Switzerland, through the voice of Mr. Henri Emmanuelli, then President of the French National Assembly: if the motion were to be accepted, France would have had Swiss chocolate banned on the grounds of cow abuse!
Herbert Maeder
Motion Aebischer CN(PS/BE)
Motion 15.3832, was tabled on 10.10.2015 by Matthias Aebischer, and was settled on 29.11.2017.
Registered text:
The Federal Council is responsible for issuing a ban on the import of products from animals that have been mistreated; in doing so, it will take account of international commitments in this area.
This motion concerned foie gras, but not exclusively. It was miraculously adopted in the National Council in June 2017, but then the opponents manoeuvred well to defeat it in the Council of States. They used the foie gras issue to polarise the debate. They sought the support of the Jewish community to denounce possible discrimination due to the pre-existing ban on kosher meat production, and the one of the watch industry, which needs reptile skins for watch straps.
Matthias Aebischer
Motion Keller-Inhelder CN(UDC/SG)
Motion 18.4309, was tabled on 14.12.2018 by Barbara Keller-Inhelder, and settled on 05.12.2019.
Text tabled:
The Federal Council is responsible for reviewing the regulations on the import of products of animal origin and for banning the import of such products when their manufacture is prohibited in Switzerland under threat of sanctions.
This motion includes, but is not limited to, foie gras. Unsurprisingly, the Federal Council proposed to reject this motion.
Barbara Keller-Inhelder
As Barbara Keller-Inhelder was not re-elected to the National Council in 2019, her motion was taken up by National Councillor Lukas Reimann (SVP/SG) in the form of a new motion: motion 19.4583, with exactly the same text tabled. The motion has not yet been dealt with.
Lukas Reimann
Motion Haab CN(UDC/ZH)
Motion 20.3021 was tabled on 02.03.2020 by Marti Haab and has not yet been dealt with.
Text tabled:
The Federal Council is instructed to make use of the power vested in it by Article 14(1) of the Animal Protection Act to impose a ban on the import of foie gras.
Unsurprisingly, the Federal Council proposes to reject this motion.
This motion is a great hope for putting an end to foie gras in Switzerland, as it is tabled by a SVP parliamentarian and a farmer, which gives it a priori a better chance of being accepted by a majority of parliamentarians.
Martin Haab
Analysis of the legislative context for Switzerland
The general direction of the legislation
Switzerland is one of the countries that prohibit force-feeding. The AniWA, which was not explicit on this point, was clarified by the 2008 ordinance. As Switzerland is not a member of the EU, it is not affected by the EU Regulation 543/2008/EC. It can therefore a priori use the term "foie gras" as it sees fit as long as it does not use the PGI designation.
Switzerland has the necessary legislation for an import ban on foie gras. Moreover, it has already enacted such a ban for other products of animal origin (cat and dog skins, seal products).
Switzerland is therefore a good candidate to ban the import of foie gras and more generally products from force-fed animals.
Prosecution and economic retaliation measures
What are the risks for Switzerland if it were to pass a law banning force-feeding products?
The producing countries, led by France, risk filing a complaint to the WTO for non-compliance with the GATT agreements. But if Article XX(a) applies, they should lose - as Canada lost to the EU over seal products - if it can be shown that this trade is contrary to public morality. And this should be easy to achieve because on the one hand Switzerland banned force-feeding 40 years ago for ethical reasons, and on the other hand 76% of the Swiss consider force-feeding to be animal abuse according to the DemoScope survey done at the end of 2018.
In addition, producing countries could take economic retaliatory measures. In 1993, following the Maeder motion, France threatened to ban Swiss chocolate if Switzerland banned French foie gras. France is likely to make similar threats, or seek to denounce certain bilateral agreements. The Federal Council will then have to fight to enforce this new legislation.