MEMORANDUM AND ORDER
Fоie 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 allegаtions 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 purportеdly 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 tо 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), contеnding 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,
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,
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,
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,
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,
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,
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,
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,
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 bаn foie gras sales in Chicago.
See City of Evanston v. Create, Inc.,
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,
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.,
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,
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,
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.,
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.,
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,
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,
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,
The plaintiffs disagree with this conclusion, arguing that the Ordinance’s negative economic effect on out-of-state foie gras production means it disсriminates against interstate commerce. In support, they direct the court’s attention to
Nat’l Foreign Trade Council v. Natsios,
*900
The plaintiffs’ reading of
Natsios
is also unpersuasive because it is based on a mis-characterization of the Supreme Court case underlying that decision. Specifically,
Natsios
relied on the Supreme Court’s holding that “a State may not impose economic sanctions on violators of its laws with the intent of changing the tortfeasors’ lawful conduct in other States.”
BMW of North America, Inc. v. Gore,
This is an overly broad reading of
BMW.
In that case, a dissatisfied consumer in Alabama sued BMW based on its nationwide policy of not advising its dealers, and hence their customers, of prede-livery damage to new cars when the cost of repair did not exceed 3 percent of the car’s suggested retail price and a jury awarded the plaintiff hefty damages. The Supreme Court held' that a statute' or regulation is not necessary for asserting a dormant Commеrce Clause claim, explaining that “State power may be exercised as much by a jury’s application of a state rule of law in a civil lawsuit as by a statute.”
Thus, the Supreme Court’s decision in
BMW
and the First Circuit’s decision in
Natsios
do not stand for the proposition that any law which has an extraterritorial economic effect is per se unconstitutional. Instead, these decisions hold that an economic penalty which is tantamount to “legislatively authorized fines” meant solely to govern out-of-state conduct violates the Commerce Clause. So, does the Ordinance rise to the level of a “legislatively authorized fine” because it is, at least in the plaintiffs’ view, meant to negatively impact the economic interests of foie gras producers located out-of-state and in other countries? Such a conclusion is inconsistent with the Supreme Court’s statements in
BMW
because an indirect
economic
effect is not tantamount to a legislative fine.
See Philip Morris, Inc. v. Reilly,
The pláintiffs also contend' that the Supreme Court’s decisions in
Hunt v. Washington State Apple Advertising Comm’n,
According to the plaintiffs, the Hunt decision means that laws which indirectly regulate extraterritorial commerce violate the Commerce Clause. Hunt, however, does not stand for this proposition. Instead, it holds that even if a law is facially neutral, it can still have the practical effect of discriminating against outside interests in favor of local ones. The Ordinance, in contrast, neither favors nor provides advantages or protection to local economic interests. Indeed, there are no such interests to protect since foie gras is only produced outside of Chicago. Thus, the Ordinance does not discriminate in рractical effect so Hunt is inapposite.
The plaintiffs’ reliance on
Kraft General Foods, Inc. v. Iowa Department of Revenue
is similarly unpersuasive. The plaintiffs contend that in
Kraft,
the Supreme Court explicitly rejected the argument that local favoritism is crucial to a finding that a law is facially discriminatory.
See Nat’l Foreign Trade Council v. Natsios,
The law in
Kraft
imposed a business tax on corporations which allowed corporations to take a deduction for dividends received from domestic subsidiaries but did not allow a credit for taxes paid to foreign countries. It thus “treat[ed] dividends received from foreign subsidiaries less favorably than dividends received from domestic subsidiaries.”
Id.
at 75,
In other words, in Kraft, the Supreme Court did not exclusively consider whether the law at issue benefitted local interests when determining if that law was constitutional. Instead, it looked to whether the law had a discriminatory effect. This court will do likewise. The fact that the Ordinance does not benefit local interests, therefore, is irrelevant for the purposes of the Commerce Clause since, in contrast to the law at issue in Kraft, the Ordinance does not discriminate against foreign commerce. For all of these reasons, the court finds that the Ordinance does not directly regulate or discriminate against extraterritoriаl commerce.
2. The Ordinance’s Effect on Interstate Commerce
In Pike, a leading Commerce Clause case remembered fondly (or perhaps not) *902 by generations of law students, the Supreme Court held that:
Where the statute regulates even-hand-edly 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 .... If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.397 U.S. 137 , 142,90 S.Ct. 844 ,25 L.Ed.2d 174 .
As noted previously, the parties vigorously dispute whether
Pike
balancing is always required for laws which do not discriminate against interstate commerce expressly or in practical effect. The City’s main arrow in its quiver is the Seventh Circuit’s decision in
Nat’l Paint & Coatings Ass’n v. City of Chicago,
The Seventh Circuit reversed, explaining that Pike does not “[supply] the standard for all laws affecting commerce.” Id. at 1131. Instead, laws fall into three categories: (1) those which explicitly discriminate against interstate commerce (e.g., a law banning the sale of spray paint manufactured outside Illinois); (2) those which are facially neutral but “bear more heavily on interstate commerce than local commerce” (e.g., a law which sets a 55-foot limit for trailers when all nearby statеs set a 65-foot limit); and (3) those which are facially neutral and “do not give local firms any competitive advantage over those located elsewhere.” Id.
The Seventh Circuit held that Chicago’s spray paint ordinance fit in the third category because it would curtail sales to law-abiding persons without affecting the vandals responsible for graffiti and thus would decrease the volume of spray paint moving into Illinois. It then asked whether this decrease would benefit Illinois firms and answered “no” because Chicago retailers would lose profits from spray paint sales. It also asked if the ordinance would have a disparate effect on manufacturers and middlemen, and again answered “no” because consumers would not favor in-state suppliers once the ban went into effect.
Id.
at 1131-32. Finally, it concluded that
Pike
balancing was unnecessary because the spray paint ban “affects interstаte shipments, but it does not discriminate against interstate commerce in either terms or effect. No disparate treatment, no disparate impact, no problem under the dormant commerce clause.”
Id.
at 1132;
id.
at 1134 (Rovner, J., concurring) (the
Pike
balancing test was inapplicable because the plaintiffs did not allege that after the ban, Chicago consumers would turn to alternate products produced primarily in Chicago or Illinois);
see also K-S Pharmacies, Inc. v. Am. Home Prods. Corp.,
National Paint appears, at first blush, to sound the death knell to the plaintiffs’ dormant Commerce Clause clаim because it is undisputed that the Ordinance at issue in this case does not “discriminate against interstate commerce in either terms or effect” since no foie gras is produced in Illinois and the plaintiffs do not allege that Chicago shoppers and restaurant customers, thwarted of their ability to purchase foie gras, will turn to Illinois-produced substitutes. Moreover, the ordinance at issue in National Paint is substantially similar to Chicago’s foie gras ban, since both ordinances banned a product produced exclusively outside Chicago and it is undisputed that Chicago consumers of spray paint and foie gras would not turn to a locally produced replacement product in the face of a ban.
The plaintiffs, however, argue that
National Paint
is an outlier which does not represent the Seventh Circuit or Supreme Court’s position vis-a-vis
Pike.
It is true that numerous Seventh Circuit and Supreme Court decisions consistently state that laws can either be discriminatory or nondiscriminatory, and that
Pike
balancing comes into play when a law is nondiscriminatory.
See, e.g., Alliant Energy Corp. v. Bie,
Notably, however, the Supreme Court has provided a bit more guidance as to when the
Pike
balancing test kicks in by focusing in on the difference between discriminatory and nondiscriminatory laws. Specifically, in
Exxon Corp. v. Governor of Maryland,
Similarly, in
General Motors Corp. v. Tracy,
the Court acknowlеdged that the line between discriminatory and nondiscriminatory laws can be blurry because “several cases that have purported to apply the undue burden test (including
Pike
itself) arguably turned in whole or in part
*904
on the discriminatory character of the challenged state regulations.”
In addition, the Supreme Court very recently stated in
United Haulers
that
Pike
balancing was required if a law did not discriminate against interstate commerce, but then promptly proceeded to focus on whether the law at issue had
“any
disparate impact on out-of-state as opposed to in-state businesses.”
It thus appears that the Supreme Court has itself recognized (albeit in a less than straightforward way) that the dormant Commerce Clause applies to nondiscriminatory laws only where the law has some sort of discriminatоry effect or when judicial intervention is necessary to promote national uniformity and thereby prevent discrimination.
See id.; General Motors Corp. v. Tracy,
The court acknowledges that, as discussed above, this conclusion is in tension with other Supreme Court and Seventh Circuit cases which do not delve into the details of the dormant Commerce Clause but instead merely repeat the oft-stated maxim that
Pike
applies to nondiscriminatory laws with incidental effects upon in
*905
terstate commerce.
United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Management Authority,
- U.S. -,
Thus, to sum up, the сourt finds that for the reasons discussed above, Seventh Circuit and the Supreme Court precedent prevent it from accepting the plaintiffs’ invitation to act as a superlegislature and opine as to the wisdom of the Ordinance. The court also finds that the Ordinance does not require it to engage in Pike balancing. Because the Ordinance is not facially discriminatory and Pike balancing is inapplicable, the Ordinance does not violate the dormant Commerce Clause. The City’s motion to dismiss the plaintiffs’ dormant Commerce Clause claim is, therefore, granted.
3. The Dormant Foreign Commerce Clause
The plaintiffs argue that the negative Commerce Clause requires the court to act to prevent “economic Balkanization” and “the retaliatory acts of other States (and foreign nations) that may follow.” Response at 16. This may be an attempt to invoke the Foreign Commerce Clause, U.S. Const, art. I, § 8, сl. 3, which provides that “[t]he Congress shall have power to ... regulate commerce with foreign Nations....” The negative or dormant aspect of the Foreign Commerce Clause protects the federal government’s ability to speak with a single voice when regulating commerce with foreign countries,
see Japan Line, Ltd. v. Los Angeles County,
But perhaps the plaintiffs are really arguing that the dormant Commerce Clause discussed in the preceding section requires the court to police the actions of legislatures to ensure that laws are consistent at the local, national, and international level. The plaintiffs appear to be proponents of uniformity, as they contend that local laws which have an extraterritorial effect violate the dormant Commerce Clause to the extent that they impose economic hardship on foie gras producers in the United States and elsewhere. Foreign economic impact, however, is a burden flowing from the Ordinance and for the reasons discussed in the prior section, it does not show that the Ordinance is facially discriminatоry or that the Pike balancing test applies to this case. The court also expresses severe reservations about a rule requiring courts to use the dormant Commerce Clause to strike down any local laws which result in inconsistencies on a national or international level. Thus, the court is unpersuaded that any extraterritorial economic effects of the Ordinance in other states or countries mean that it is unconstitutional, either under the dormant Foreign Commerce Clause or, as discussed extensively above, the dormant Commerce Clause.
*906 III. Conclusion
The court’s sole task is to evaluate the Ordinance’s constitutionality. For the above reasons, it finds that Chicago’s ban of foie gras sales in restaurants does not exceed the City’s home rule powers or violate the dormant Commerce Clause. Thus, the Ordinance does not violate the Illinois or United States Constitutiоns, so the City’s motion to dismiss [# 9] is granted. The clerk is directed to enter a Rule 58 judgment and to terminate this case from the court’s docket.
Notes
. Chicago's Municipal Code defines a "food dispensing establishment” as "any fixed location where food or drink is routinely prepared and served or provided for the public for consumption on or off the premises with or without charges.” Mun.Code of the City of Chicago § 4-8-010. Restaurants are a type of food dispensing establishment. See id.
.
The City retreats from this position in its supplemental brief addressing the recent
United Haulers
case. However, this court's task is to determine matters of law, so it will consider the reach of
Pike
despite the City’s reading of
United Haulers. See Hartford Acc. and Indem. Co. v. Sullivan,
. Presumably, the Ordinance will have some effect on in-home foie gras consumption but will not stamp it out entirely, since Chicago residents can purchase foie gras outside Chicago and prepare it in their homes.