Food Abuse: Basis for Suits
13 states say you can libel a fruit; Oprah sued for knocking hamburger.

BY MARIANNE LAVELLE

NATIONAL LAW JOURNAL STAFF REPORTER

The National Law Journal (p. A01)
Monday, May 5, 1997

AN OPRAH WINFREY show on "mad cow" disease and a Vermont environmental group's campaign against fruit irradiation face the first legal actions under new laws sweeping the country that aim to protect the nation's food supply from the blight of criticism.

Thirteen states have enacted so-called food disparagement laws in the last six years, and eight state legislatures have bills pending. The laws vary slightly, but all give food producers a cause of action against those who make "disparaging statements" and disseminate "false information" about the safety of their products.

The laws mark a leap beyond traditional common-law constraints on remarks about commercial products. In the past, courts have granted relief to businesses whose products have been bad-mouthed--but only when the speaker, generally a competitor, is intentionally attempting to hurt sales.

"Veggie libel laws" or "banana bills," as opponents refer to them, are designed to make it easier for growers and ranchers to recover damages from an increasingly nettlesome source, those who allege health risks related to their products.

"It's agribusiness political correctness run amok," says media lawyer Bruce E. H. Johnson, of Seattle's Davis Wright Tremaine L.L.P., who argues that the state laws and their broad definitions of "false" information blatantly vio late constitutional free speech guarantees.

But Steve Kopperud, senior vice president of the Alexandria, Va.-based American Feed Industry Association, argues the laws are not an attempt to stifle debate but "to impose the same kind of burdens of proof you see in commercial sp eech cases." It is unfair, he argues, that "you can't say, 'This sugar pill will cure cancer,' but an activist can say, 'This egg will kill you.' "

Libel Actions Didn't Work

The movement to create a special libel law for edibles grew up in response to Washington state apple growers' failed efforts to hold "60 Minutes'' liable for their losses after the CBS-TV news program ran a 1989 report on the pesticide Alar.

"60 Minutes" reported that Alar, a Uniroyal Co. chemical then routinely sprayed on apples to keep them fresh longer, exposed children in particular to a higher risk of cancer. Washington state's growers, arguing that other scientific studies showed the chemical was safe, took "60 Minutes" to court. But a federal district judge ruled in 1993 that although such scientific opinions existed, the statements made on the show were not "proven as false" by the growers. Auvil v. CBS "60 Minutes," 836 F. Supp. 740 (E.D. Wash.). The 9th U.S. Circuit Court of Appeals upheld the decision, and the U.S. Supreme Court denied certiorari last year. 67 F.3d 816, 116 S.Ct. 1567.

Mr. Johnson, who represented "60 Minutes,'' says the new state laws, in effect, will change the burden of proof rules that were so important in his case. The media, environmentalists and others who speak out about food will be required to prove that their statements were not false, he says.

Most states define "false information" as lacking a basis in "reasonable and reliable scientific inquiry, facts or data." The nature of scientific inquiry makes falsity difficult to prove because legitimate differences of scientific opinion about food safety issues arise as hypotheses are tested and refined, Mr. Johnson says.

JOHN STAUBER, DIRECTOR OF THE MADISON, WIS.-BASED PUBLIC-INTEREST GROUP THE Center on Media and Democracy, argues, "Under this definition, it would have been illegal in the 1960s to criticize pesticides such as DDT, which were believed 'safe' for the environment according to data that was then considered 'reasonable' and 'reliable.' " Mr. Stauber is co-author of a forthcoming book, "Mad Cow USA," that will look at food disparagement laws.

Mr. Kopperud, of the American Feed Industry Association, says the new laws permit only plaintiffs that have sound scientific data to pursue legal actions. "We didn't want to contribute to the frivolous cases out there," he says. "You're going to have to walk a mile to bring one of these actions."

Idea's Roots and Fertilizer

The feed industry group and the American Farm Bureau Federation hired the Washington, D.C., food and drug law firm of Olsson, Frank and Weeda P.C. to draft model state food disparagement legislation, according to Mr. Kopperud.

The industry groups have circulated the model bill to their members across the country, but Mr. Kopperud says his association "has not lobbied a sin gle legislature. These are truly grassroots, local political battles." Olsson Frank's work on the issue did not end with drafting the model bill. On April 10, the firm, working on behalf of another client, the United Fresh Fruit and Vegetable Association, sent a cease-and-desist letter to the environmental organization Food & Water Inc., of Walden, Vt., threatening suit to stop the group's anti-food-irradiation campaign.

"As you are no doubt aware, nearly 30 state legislatures have passed or are considering legislation which codifies a cause of action against persons who disseminate false statements regarding agricultural products," the letter says. "Food and Water could be subjecting itself to substantial liability."

In February, Food & Water distributed an "Urgent Irradiation Action Alert" to its members, urging them to call California-based specialty-food distributor Frieda's Inc. and demand that it not distribute produce that has undergone radiation processing to kill pathogens.

Two days before receiving the cease-and-desist letter from the Olsson law firm, Food & Water's executive director, Michael Colby, says he received tangible evidence of his group's impact. Frieda's President Karen Caplan wrote to Mr. Colby, assuring him that "our company does not expose any of our foods to irradiation nor do we have any plans to in the future."

Mr. Colby says his group intended to continue its activism against food irradiation, pesticides and other safety issues. "We have literally dozens of attorneys that have offered their services to defend us," he says. "Also, there is a lot of legal thinking and strategizing about how to turn this to the advantage of the public interest. For example, access to the corporate, lobbying and public relations records would allow us to lay open to the American people" the attempts by agribusiness to influence public opinion.

Olsson Frank referred inquiries on the matter to its client United Fresh Fruit. The group's spokeswoman, Sarah Delea, released this prepared statement: "We feel that these laws serve as a reminder to groups and individuals that they need to stay within legal boundaries when disseminating information. Groups or individuals should not defame a product or the way it is grown/produced without factual, scientific basis in order to further their own agendas and cause unnecessary public fear."

Test Case: Oprah and Mad Cow

The first test of the food disparagement laws will not likely be against a small environmental group but one of the nation's most popular TV programs. Texas cattle ranchers have sued the "Oprah'' show for its April 16, 1 996, broadcast on bovine spongiform encephalopathy, or "mad cow" disease. The British beef industry has been devastated by evidence that this disease passed to humans and killed four dairy workers and six young consumers. There has been no evidence of the disease on this continent. Nevertheless, the talk-show host explored that possibility with one of her guests, cattle rancher-turned-vegetarian activist Howard Lyman, director of the Humane Society's Eating with Conscience Campaign.

"You say this disease could make AIDS look like the common cold?" she asked. "Absolutely," Mr. Lyman replied, stating that the U.S. beef industry engages in the same practice believed to be responsible for transmission of the disease in England. He was referring to the practice of feeding meat and bone me al containing cattle protein to other cattle, a practice the Food and Dr ug Administration proposed on Jan. 3 to ban.

Ms. Winfrey turned to her audience and prompted their applause with this remark: "It has just stopped me cold from eating another burger!"

The following day, cattle prices plummeted. Amarillo rancher Paul F. Engler of Cactus Feeders Inc. decided to use his state's 1995 food disparagement law to try to recover more than $1 million in damages he says he suffered. Sued along with the host is her production company, Harpo Productions Inc., and Mr. Lyman.

The show's "carefully and maliciously edited statements were designed to hype the ratings at the expense of the American cattle industry," says the complaint, filed last June in federal court in Amarillo. Engler v. Winfrey, 2-96-cv-233 (N.D. Texas).

"We're not trying to restrict anybody's right to free speech," says Mr. Engler's attorney, Kevin Isern, of Tom Upchurch Jr. and Associates L.L.P., of Amarillo. "But free speech has to be correct speech. I think there is still a duty on the part of talk shows to report what the truth is."

Lawyers for Harpo Productions, Charles L. Babcock, of Dallas' Jackson & Walker L.L.P., and Barry D. Peterson, of Amarillo's Peterson Farris Doores & Jones, did not return phone calls by press time. A spokeswoman for Ha rpo Productions said the studio would have no comment.

Suit Attacked Georgia Law

Meanwhile, David J. Bederman, an Emory University School of Law profe ssor (now visiting at the University of Virginia School of Law), attempted to mount a facial challenge to Georgia's food disparagement law based on what he says were its "profound and serious Constitutional defects." But the court dismissed the case in 1995 for lack of a live controversy. Action for a Clean Environment v. Georgia, 457 S.E.2d 273 (Ga. App.1995).

Professor Bederman maintains the laws impose liability on speakers in violation of the principles articulated in the U.S. Supreme Court's pivotal decision on libel, The New York Times v. Sullivan, 376 U.S. 254 (1964).

Many courts--including the court in the Alar case--have held that the Sullivan rule regarding speech about public figures should apply to matters of public concern like product disparagement cases: In order to establish liability for a false statement, a plaintiff must prove that the speaker had knowledge of its falsity or showed reckless disregard for its truth or falsity.

But most of the various state statutes would not impose such a heavy burden on the plaintiff, according to Professor Bederman's analysis. Alabama and Oklahoma, for example, would hold speakers liable even for statements they did not know were false.

Professor Bederman says he is disturbed at the effort to stifle "media outlets or other speakers reporting on matters of profound public concern."

But Mr. Kopperud says his members also have concerns: "There has been long-standing frustration...that an activist organization, for the price of a full-page ad in USA Today, can say whatever it wishes to scare the public."


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