When a Put-Down of Produce Could Land You in Court

By David Segal
Washington Post
Tuesday, May 27 1997; Page E01

Don't dis your vegetables. In the 14 states now carrying so-called food disparagement laws, that's advice worth heeding. The laws, all adopted in the past three years, make it possible for food producers to sue anyone spreading false and damaging information about such supermarket perennials as hamburger and cantaloupe.

Some legal scholars and critics argue the laws, termed "banana bills" by detractors, trample free-speech protection and serve agribusiness's efforts to chill debate about potentially harmful products.

But the Arlington-based American Feed Industry Association (AFIA), a prime mover behind the laws, contends that the legislation is needed to prevent food scares and fills a gaping hole.

"The country prohibits false advertising and you can't fake claims about a product, but there's no sin in misleading the public about food," said Rex Runyon, a spokesman for the trade group. "This is about encouraging responsible science and causing speakers to think twice about opportunistic statements."

Runyon cited the hubbub about "tainted" South American grapes and a 1970s ruckus over sodium nitrates in pork products as examples of food producers getting walloped after negative, and uninformed, publicity.

A "60 Minutes" segment spawned the mini-groundswell for these laws. In 1989, the program ran a story critical of Alar, a chemical sprayed on apples to keep them fresh, alleging that it presented a cancer risk, particularly to children. Growers in Washington state sued for damages but a federal judge concluded that they were unable to prove "60 Minutes" had presented false information. Subsequent appeals failed.

In 1992 the AFIA hired attorneys at D.C.'s Olsson, Frank & Weeda to draft a model bill, and state chapters of the American Farm Bureau began agitating for passage. Eight states, in addition to the 14 where the law has been passed, are now considering some variation of the draft.

Critics say the laws mark a dangerous step beyond existing libel protections. In the past, courts have generally offered relief to companies when competitors deliberately hurt their sales by spreading falsehoods about a product. Food disparagement laws typically give food producers a cause for action even if someone didn't intend any harm.

David Bederman, a professor at Emory University Law School, said that's reason enough for courts to find the laws are unconstitutional.

"The basic problem is that the laws make speech actionable even if a person is disseminating information in good faith that he believes to be true and later is proven false, Bederman said. "The U.S. Supreme Court has consistently found that free speech is a precious right and in order to promote it you have to tolerate speech that's untruthful if uttered in good faith."

A test case, courtesy of Oprah Winfrey, is now winding its way through a Texas court. An Amarillo rancher, Paul Engler, has sued the daytime talk queen and her production company, Harpo Productions Inc., for $6 million in damages he allegedly sustained after Winfrey ran a show about mad cow disease in April 1996. The program featured an interview with a vegetarian activist, Howard Lyman, who answered "absolutely," when Winfrey asked whether mad cow disease could "make AIDS look like the common cold."

Winfrey later got a round of applause from her audience by asking, "Now doesn't that concern you all a little bit here, hearing that? It has just stopped me cold from eating another burger. I'm stopped."

After the show aired, cattle prices plunged and didn't recover for nearly two months, according to Engler's attorney. He plans to argue that Winfrey knew she was misleading viewers because experts with contradictory views who had appeared on the show were edited out.

A spokeswoman for Winfrey would not comment on the suit.

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