Food Fights

Oprah ducks the Texas food libel law, but there's plenty more where that came from.

| Tue Feb. 24, 1998 4:00 AM EST

With dwindling hopes, American agribusiness awaits the outcome of a Texas cattleman's lawsuit against talk-show host Oprah Winfrey, who in a 1996 segment said she'd stop eating hamburgers for fear of bovine spongiform encephalopathy (BSE), the lethal "mad cow disease." The plaintiffs say Winfrey libeled their industry and, more importantly, caused beef prices to plummet.

The first major suit brought under a food disparagement law was dealt a harsh blow Wednesday when a federal judge ruled the plaintiffs had not proven their case under Texas's False Disparagement of Perishable Food Products Act of 1995. (The suit will continue as a common business disparagement case, which some legal experts say plaintiffs are unlikely to win because Winfrey's show never mentioned the plaintiffs or their business by name.)

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But the Texas law is just one of a baker's dozen of so-called "veggie libel" laws which agribusiness has pushed through state legislatures in recent years; the others are in Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, and South Dakota. Food producers argue that these laws will punish only uninformed, alarmist speech about food, but opponents argue that they chill protected speech.

Food disparagement laws greatly expand what can be prosecuted under American libel law. Currently, only speech that is false, malicious, reckless, and injures the reputation of specific human beings is actionable. Many scholars believe that criminalizing speech about pigs or potatoes—regardless of their value or "perishability"—violates the First Amendment.

That doesn't bother the American Feed Industry Association, a lobbying group that's promulgating a "Model State Code to Protect Agricultural Producers and Products from Defamation." This state-house-ready, fill-in-the-blank statute can help states outlaw "the dissemination of false and disparaging information" about any agricultural product, animal or vegetable.

Satirizing the debate is California Assemblyman Dick Floyd (D-Wilmington), who is trying to amend a proposed veggie libel law to also criminalize negative speech about the state's film, fishing, oil, and aerospace industries. Floyd rationalizes, tongue in cheek, that bad movie reviews can doom costly, perishable Hollywood films—shouldn't The Postman get the same protection as beets?

Of course, food producers have long discouraged the scrutiny of food production, using lawsuits against nosy citizens and food-labeling enforcers; the new food libel laws just take the tactic to the next level. Here we present the great food fights, past and present:

APPLES
The Plaintiffs:
Washington State apple growers
The Defendants: CBS News and "60 Minutes"
The Story: Alar was sprayed on apples to increase their shelf life and redness. A 1989 "60 Minutes" segment entitled "'A' is for Apple" raised questions about potential health risks from Alar use, specifically a cancer risk in children consuming apple juice and applesauce. The apple growers sued, claiming that the program caused their sales to plummet.

The case was eventually dismissed, but only after CBS spent megabucks to defend itself, the First Amendment, and the EPA—and the EPA banned Alar as a human carcinogen. Even though "60 Minutes" was right about Alar, this case made agricultural producers scramble to find ways to protect themselves from future negative reporting, leading to today's veggie libel laws.

BEEF
The Plaintiffs:
Texas cattle feeder Paul Engler and family
The Defendants: Talk-show host Oprah Winfrey and lapsed cattleman Howard Lyman
The Story: In an April 16, 1996 "Oprah" segment describing how mad cow disease could infect humans because sick cows were ground up and fed to healthy cows, Winfrey said she'd eaten her last hamburger. Vegetarian activist Lyman said mad cow disease would "make AIDS look like the common cold" if it gained a foothold in the U.S; the plaintiffs claim Oprah "induced" him to say it. "When you talk about beef products in the U.S., and we are the largest cattle feeder in the U.S., I sort of feel like you are talking about us," opined brother Michael Engler to the Dallas Morning News. Both sides have deep pockets, so the suit will likely be appealed to death no matter who wins.

Meanwhile, for the trial's estimated four to six weeks, Oprah must tape her show from Amarillo, which comes out the real winner for hosting yet another expense-account media circus.

BEER
The Plaintiffs:
Eleven large brewers including Boston Beer Co. (makers of Samuel Adams Boston Lager); Pete's Brewing Co. (Pete's Wicked Ale); and watery-beer giants Pearl Brewing Co. (Pabst), Miller, Coors, and Stroh
The Defendant: Missouri Division of Liquor Control chief Hope Whitehead
The Story: On January 1, Missouri began requiring that beer labels include "the name and location of the owner of the facility which produced and packaged" the beer. Anheuser-Busch, whose beers already are labeled as products of the Show Me State, had lobbied the state legislature hard for this one. In November, Whitehead had warned 14,000 Missouri liquor distributors that the state would soon seize improperly labeled beers.

The large brewers fear the new law will shatter the polite fictions that every Sam Adams is brewed in New England, or that the "Plank Road Brewing Co." makes something other than, well, Miller beer, or that Coors is always brewed within shouting distance of the Rockies. The law is "a huge logistical and financial roadblock to us in terms of doing business in Missouri," said Plank Road spokesman Scott Bussen to the Milwaukee Journal Sentinel.

Meanwhile, as its one-of-a-kind beer-labeling law fights for its life in court, the Missouri legislature is considering—surprise!—a comprehensive food-disparagement law.

ICE CREAM
The Plaintiffs:
Ice cream purveyors Ben Cohen and Jerry Greenfield, organic yogurt maker Stonyfield Farm, natural foods grocer Whole Foods Market, and organic dairy and distribution co-op Organic Valley
The Defendants: Illinois and Chicago
The Story: Here Ben and Jerry et al. sued to be permitted to label dairy products as free of recombinant bovine growth hormone (rBGH). Illinois had outlawed such labeling, arguing that it would advertise a non-existent benefit, and would imply that milk from rBGH-treated cows was unsafe.

The lawsuit was settled out of court in August, and Ben & Jerry's packages now say, "We oppose the use of recombinant bovine growth hormone (rGBH). The family farmers who supply our milk and cream pledge not to treat their cows with rBGH. The FDA has concluded that no significant difference has been shown, and no test can now distinguish between milk from rBGH and untreated cows."

BURGERS
The Plaintiff:
McDonald's Corp.
The Defendants: Part-time bartender Helen Steel and unemployed mailman Dave Morris
The Story: Steel and Morris were among a group who passed out leaflets in Britain condemning McDonald's for a wide array of business practices including menus that "are based on the torture and murder of millions of animals," and generally treating Ronald McDonald like Joe Camel. The burger giant, using strict British libel laws that force defendants to prove the truth of everything they say regardless of intent, figured a timely lawsuit would quickly silence the troublemakers.

Though McDonald's technically won its case against the "McLibel Two"—the corporation was awarded $100,000 in damages—it reaped seven years of negative publicity in England's longest trial ever, and turned two unremarkable proles into telegenic martyrs. Also, the judge loudly berated McDonald's for cruelty to animals.

GIANT FLIGHTLESS BIRDS
The Plaintiffs:
Ten mostly Texan emu ranchers
The Defendant: Honda Motor Co.
The Story: A 1997 commercial for the Honda Civic depicted a man driving to job interviews, including one at an emu operation called Fowl Technologies. A man there tells the Honda driver, "Emu, Joe, it's the pork of the future." Nowhere does the commercial imply that emu-derived products (meats and oils) are unsafe.

Nonetheless, the emu ranchers allege that Honda's commercial exposed them to "the hatred, contempt, and ridicule of the general public, as well as their friends and relatives." The emu case is based on the same Texas food-disparagement law as the cattlemen-v.-Oprah suit—and pending in the same court—and thus a six-foot flightless Australian bird may be the first real test of whether American food-libel laws are unconstitutional.

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