After the Oprah Crash -- Food Disparagement Laws

The Village Voice (New York City) April 29, 1997

After the Oprah Crash

Venerable Talk Show Host Gets First Taste of Food Disparagement Laws

by Thomas Goetz

See Oprah and the Cannibal Cows for an excerpt of Oprah's show.

Consumer advocacy can be hazardous to your health, or at least your pocketbook and career. Just ask Oprah Winfrey. Last year, the beloved talk-show host and an Oprah guest raised some concerns about hamburgers-and now they're both facing a multi-million dollar lawsuit for disparaging the cattle industry.

Last April 16, with Bovine Spongiform Encephalopathy (BSE)-a/k/a mad cow disease-sparking panic worldwide, Winfrey invited Howard Lyman to tell Oprah's 15 million viewers about ''Dangerous Foods.'' At the time, Lyman must have seemed like the perfect guest-having disavowed his first 40 years as a cattle rancher, he now works as the director of the Humane Society's Eating With Conscience Campaign, where he spreads the gospel of organic foods and a meat-free diet.

Lyman described a nightmare scenario: ''One hundred thousand cows per year in the United States are fine at night, dead in the morning. The majority of those cows are rounded up, ground up, fed back to other cows. If only one of them has mad cow disease, [it] has the potential to infect thousands.''

Lyman's warning landed him and his celebrated host in court. Calling upon a new state law that bars the ''false disparagement of perishable food products,'' two Texas cattle ranchers have initiated a class-action suit against Lyman and Winfrey for ''lambasting the American cattle industry'' and placing ''unfounded and unwarranted fear in the beef consumer's mind.''

Winfrey and Lyman are the first defendants to face so-called food disparagement laws, which make it illegal to question the safety of any food product without verifiable scientific proof. Known as ''veggie libel'' or ''banana bills,'' the laws have been enacted in a dozen states since 1991, despite serious concerns about their constitutionality. In them, American agribusiness has its mightiest tool yet against food-safety activists and environmentalists, whose campaigns can cost industry millions if they affect consumers' buying habits. As one food industry lobbyist says, ''all agricultural eyes will be watching this one.''

But if food activists think they have their greatest celebrity spokesperson yet in Oprah Winfrey, they may be disappointed. ''We do not comment on pending litigation,'' says an Oprah spokesperson. To some observers, Winfrey's silence is more than legal prudence-it's an indication of how powerful these laws really are. ''If you can shut up Oprah,'' one activist observes, ''you can shut up anyone.''

For cattle connoisseurs, Chicago was the place to be on April 16, 1996. Downtown, Winfrey was airing the ''Dangerous Foods'' episode. At the Chicago Mercantile Exchange, cattle futures were being traded at the usual prices. And in a nearby hotel, Texas cattleman Paul Engler was watching TV. ''I never see Oprah,'' Engler recalls, ''but I just happened to turn it on. I was entranced-I couldn't believe what I was seeing. It was so wrong, it was so judgmental. I knew it was going to have an economic impact on our industry.''

Impact, indeed. According to the complaint filed against Winfrey and Lyman, the moments following the broadcast became known as the ''Oprah Crash.'' Prices for cattle futures at the Mercantile Exchange plummeted, as fears spread that mad cow disease lay latent in American beef. Engler estimates that his company, Cactus Feeders, lost $7 million in the Oprah Crash.

The cattle industry went into a stampede of protest. The Texas attorney general, calling the show "baloney," considered suing under the state's new food disparagement law, but opted out. Engler decided to step in. He was soon joined by another Amarillo cattleman, Bill O'Brien, owner of Texas Beef. Together, they're suing for $2 million, plus punitive damages. ''We're taking the Israeli action on this thing,'' Engler says. ''Get in there and just blow the hell out of somebody.''

For his part, Engler has never been shy about taking on the media. In 1987, the rancher led a group of Amarillo businesses in boycotting the local newspaper, the Amarillo Globe-News, for its ''negative and slanted'' coverage of local business-including a series exposing the area's entrenched racism. ''I did that, much to my chagrin and ignorance,'' Engler says now. ''You don't want to start an argument with somebody who buys printer's ink by the barrel.''

But taking on somebody who buys videotape by the mile-that, it seems, is another matter. ''We know what we're up against,'' Engler says about Winfrey. ''But we don't scare very easy in the business we're in.''

To aid his cause, Engler has brought in Joseph Coyne from the formidable Los Angeles law firm Sheppard, Mullin, Richter & Hampton. Coyne's most recent triumph came last May when he helped defense contractor Northrop Grummond successfully fight off charges of defrauding the government.

The Winfrey suit, Coyne says, ''is a historic case; it serves as a real bellwether. It should make reporters and journalists and entertainers-and whatever Oprah considers herself-more careful.''

While Winfrey isn't saying a word (Oprah lawyers refuse to even release tapes of the ''Dangerous Foods'' episode to the press), Lyman is adamant that the suit will fail. ''When you say something you can prove to be true, you shouldn't have to worry about the sky falling in on you,'' Lyman says. ''Most people don't know we're collecting roadkill, or that euthanized pets are ending up in the food of our pets. I did not say these things without giving it a considerable amount of thought. I will stand by what I said on the show.''

But Lyman's exuberance has even the most adamant adversaries of food disparagement laws wincing. ''The extracts from the show I've heard are pretty crazy,'' says David Bederman, a law professor at the University of Virginia, who tried to bring the first challenge to Georgia's food disparagement laws in 1995. ''I could see how he might be found to be implying that a fair amount of the beef herd is contaminated with BSE.''

According to the law in Texas and many other states, that implication alone would potentially make Lyman liable for damages. As Bederman explains, in contrast to traditional libel law, the food disparagement laws ''shift the burden of proof to the defendant. They allow speakers to be held liable even when they were just wrong. That's in contrast to the First Amendment. As Oliver Wendell Holmes said, false information is the price we pay for a free society.''

But with these laws on the books, false information has its own price-and anyone who feels remotely wronged has just cause to claim a piece of it. ''These statutes are intended to let anyone in the food chain, anyone in the industry sue,'' says Sandy Baron, director of the Libel Defense Resource Center. In the case of the cattle industry, that means 1.5 million people could take Oprah to court.

With such broad scope, the laws also seem to conflict with the First Amendment's ''of and concerning'' clause, which requires that plaintiffs prove the statements at issue were specifically about them. ''They can't get around the First Amendment,'' says Baron. ''I don't think they'll stand up.'' Even Coyne acknowledges this is ''a real risk'' with the laws-and points out that the Oprah suit also invokes the traditional grounds of negligence.

So far, constitutional quandaries haven't stopped the laws from sweeping across the country. They're far too tempting, it seems, for agricultural interests frustrated by food-safety activists. In a letter dated August 8, 1995, Bill Hargraves of Food Technology, an irradiation company, sent a copy of Florida's law to Lyle Wong at the Hawaii Department of Agriculture. ''You might want to encourage the Hawaiian legislature to enact something similar,'' Hargraves suggests, ''since it might help muzzle the 'anti's.''

Such tactics are just what civil liberties advocates like Bederman are worried about. ''The mere fact that the law is on the books serves the interest of those who want to deter speech,'' he suggests. ''They are tailor-made to keep people quiet.''

Oprah, it turns out, is not the only one being threatened with these new laws. On April 10, the law firm representing the United Fresh Fruit and Vegetable Association (a trade group that includes Dole, Sunkist, and 1500 other produce interests) sent a letter to Food & Water, calling on the activist group to ''cease and desist'' from its campaign against a fruit irradiation plant in Hawaii. ''As you are no doubt aware, nearly thirty State legislatures have passed or are considering legislation which codifies a cause of action against persons who disseminate false statements regarding agricultural products,'' United's attorney writes. ''Food & Water could be subjecting itself to substantial liability under these new State initiatives and/or the common law of defamation.''

According to Food & Water director Michael Colby, after his group targeted the supermarkets and distributors in line for the irradiated Hawaiian produce, several promised not to stock irradiated food, threatening the plant's future-and prompting United's letter.

''We finally got tired of ignoring it,'' says Sarah Delea, a United spokeswoman, who adamantly defends the safety and benefits of irradiated food. ''Food & Water depends on corporate terrorist tactics, defaming companies' reputations without any basis in fact.''

But if United thinks the letter will make Food & Water cease or desist, well, it may not work that way. ''We'd love to go to court. We'd be very excited to use the publicity of a lawsuit to illuminate the irradiation of food,'' Colby says, adding: ''They don't do this kind of thing to people who are not effective.''

Perhaps the most effective safe-food campaign was against Alar. In 1989, the Natural Resources Defense Council released a report claiming that Alar, a chemical used in the apple industry, was a dangerous carcinogen.

After 60 Minutes devoted a story to the report, apples were pulled from school menus and supermarket shelves; Uniroyal Chemical, the maker of Alar, took it off the market.

But NRDC's victory soon turned sour. Claiming $75 million in damages, a group of Washington State apple growers filed suit against CBS and NRDC (curiously, the damage allegedly caused by the scare has risen dramatically since it first broke, to $250 million, then $500 million; one trade group recently rounded it up to an even $1 billion). At the same time, industry trade groups mounted a fierce PR campaign attacking the food-safety group and its report, culminating in a front-page 1991 New York Times article that implied the group's report was unfounded, and that the suit had been won by the apple growers. But CBS would ultimately be vindicated-last year the Supreme Court refused to hear the apple growers' appeal. Still, ''the industry managed to take an apparent victory for consumers and change it to this idea that the Alar scare was bad science hyped by big media simply to scare consumers and increase ratings,'' notes John Stauber, editor of PR Watch.

With Alar, food disparagement laws were born. Within seven years, several states had considered or passed laws that would allow agriculture interests to sue for damages-New Jersey, Florida, Ohio, and California among them. The laws all share much the same language, and that's no coincidence. The statutes are based on a model law drafted by the Animal Industry Foundation (AIF), a nonprofit trade group funded by Purina, Cargill, assorted chemical and pesticide companies, and various agriculture associations (Paul Engler's Cactus Feeders is listed as an AIF ''Silver Supporter'' in the group's newsletter).

Needless to say, the laws are a godsend to agribusiness-especially when facing grassroots campaigns like those by Food & Water. ''Call it food slander protection, veggie disparagement,'' says one AIF letter to members. ''The idea that an activist group with the price of a full-page ad can feed the public misinformation about a food product as part of a political agenda is increasingly being challenged.''

From the activist point of view, though, the laws demonstrate the industry's frustration. ''These laws are being passed because activism has increased,'' says Pure Food Campaign coordinator Ronnie Cummins. ''There's no doubt that consumers are concerned about genetic engineering and synthetic hormones. But instead of doing anything about it, the industry prefers to go after the activists.''

The point is seconded by PR Watch's Stauber: ''Food disparagement laws are clearly part of the PR industry's secret war on activists.'' Stauber's forthcoming book, Mad Cow USA, cowritten with Sheldon Rampton, details the PR industry's battle plans. ''The food, pesticide, and agribusiness industries have a common vested interest in silencing criticism of their products.''

Part of that strategy involves discrediting the research behind food safety activism as unsound or ''junk science.'' ''Sound science,'' on the other hand, means irrefutable facts, as determined by industry (or ABC News's John Stossel)-a level of proof the pesticide firms and agribusiness have put into the food disparagement laws, via AIF's model statute. Consider the wording of the Texas law, where falsity is determined by ''whether the information was based on reasonable and reliable scientific inquiry, facts, or data.''

According to Steven Milloy, the executive director of The Advancement of Sound Science Coalition (TASSC), junk science lurks everywhere in the environmental and food safety movements, from pesticide warnings to the greenhouse effect. ''Junk science is like obscenity: it's hard to define, but I know it when I see it.'' Milloy sees it in some otherwise respected places such as the Journal of the American Medical Association and the New England Journal of Medicine-''a primary resource for junk science.''

Just as the AIF is behind the food disparagement laws (and behind AIF are the luminaries of the pesticide and agriculture industries), TASSC has a similar, unsung heritage. While the group portrays itself in the press as a coalition of conscientious scientists, support comes from companies like Procter & Gamble, Exxon, Dow Chemical, and Philip Morris.

Milloy's office, it turns out, is located in the headquarters of APCO Associates, a Washington, D.C., public relations firm that specializes in creating ''coalitions'' like TASSC. ''The beauty of coalition building is that companies can get their agenda out but never have the corporate names on it,'' says Kevin McCauley, editor of O'Dwyer's PR Services Report, a public relations industry newsletter. APCO Associates, McCauley notes, practically invented the front-group strategy.

None of these groups are mentioned in the court papers filed against Winfrey and Lyman, but all are in full support of the cattlemen. Not that Engler and O'Brien need it-they've got Texas on their side.

''Texas has not been a good state for media defendants,'' notes the Libel Defense Resource Center's Baron, who points to four jury verdicts in the '90s-from a $58 million award against Dallas's WFAA-TV to last month's $223 million verdict against The Wall Street Journal (the largest libel verdict in history).

But with their lawyers gearing up for a trial, Lyman and Winfrey should make for formidable opponents. Not only is Winfrey America's incipient first black billionaire, she also has the goodwill of most of the country.

''It's not a good idea to take on the most admired person in America,'' says Pure Food's Ronnie Cummins. ''We hope it does come to trial. It'll be the perfect chance to try the beef industry in the court of public opinion.''

Oprah and the Cannibal Cows

Just what did Oprah Winfrey and the Humane Society's Howard Lyman say about beef? Here's a portion of the April 16, 1996, show that landed them in a Texas court. Oprah Winfrey: You said this disease could make AIDS look like the common cold?

Howard Lyman: Absolutely.

Winfrey: That's an extreme statement, you know.

Lyman: Absolutely. And what we're looking at right now is we're following exactly the same path that they followed in England: 10 years of dealing with it as public relations rather than doing something substantial about it. One hundred thousand cows per year in the United States are fine at night, dead in the morning. The majority of those cows are rounded up, ground up, fed back to other cows. If only one of them has mad cow disease, [it] has the potential to infect thousands. Remember-today, the United States-14 per cent of all cows by volume are ground up, turned into feed, and fed back to other animals.

Winfrey: But cows are herbivores; they shouldn't be eating other cows.

Lyman: That's exactly right. And what we should be doing is exactly what nature says: we should have them eating grass, not other cows. We've not only turned them into carnivores, we've turned them into cannibals.

Winfrey: Now see? Wait a minute. Let me just ask you this right now, Howard. How do you know for sure that the cows are ground up and fed back to the other cows?

Lyman: Oh, I've seen it. These are USDA statistics. They're not something that we're making up.

Winfrey: Now doesn't that concern you all a little bit right here, hearing that?

audience: Yeah!

Winfrey: It has just stopped me cold from eating another burger! I'm stopped!

audience: Yeah!

--Thomas Goetz

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