Legal eyes watch `veggie libel' suits

Journal Record, The (Oklahoma City), Jan 16, 1998 by Barry Shlachter Fort Worth Star-Telegram

FORT WORTH -- Supporters call the lawsuits "food disparagement" cases. Critics call them "veggie libel."

Either way, Texas is at the forefront of a new course of litigation with a pair of the cases that pit the struggling emu industry vs. Honda and cattle feeders vs. Oprah Winfrey.

The suits, both filed in Amarillo, are being closely followed because of the chilling effect they could have on public debate and on advocacy groups concerned with food safety issues. "They are bellwether cases for these kinds of laws," said Michael Colby, executive director of Food & Water, a Walden, Vt.-based group opposed to the use of irradiation, pesticides and growth hormones in food production and processing. "Everybody is watching." Under the Texas law, a person is liable for spreading what he or she knows to be false information that a perishable food is not safe for public consumption. It allows affected producers to collect damages. The trial of the suit against Winfrey, scheduled to start Tuesday, would be the first test of a food disparagement law since Texas and 12 other states passed such measures. Similar "banana bills," as critics call them, have been introduced in 12 more states or await a governor's signature. "We're not trying to put a clamp or a deterrent on free speech," said Rex Runyon, a spokesman for the American Feed Industry Association, whose Washington law firm, Olsson, Frank and Weeda, crafted a model bill on which the various laws have been based. "We think that this law won't prohibit people from saying anything, but will make people or groups think," Runyon said from Alexandria, Va. "And if they say anything wrong, they should be held accountable." But David Bederman, a professor at Emory University Law School in Atlanta, said he has consulted with attorneys for TV stations who indicated that their clients have already spiked investigative reports because of the risk of a costly disparagement suit. "I think the purpose of these laws is to chill speech," Bederman said. "They have been drafted in such a way that you can be liable for triple damages. Any activist or reporter is going to think twice." On the other hand, Food & Water redoubled its fight against irradiation after receiving a "cease and desist" letter threatening legal action in one of the 13 states with a food disparagement law, said Colby, who exploited the opportunity by dashing off copies of the letter to reporters in a publicity blitz. As for going to trial, "We'd love it. Let's go!" Colby said. "Some of the country's top First Amendment attorneys are dying to go to court on this issue," he said. And the resulting media buzz would only draw more attention to his cause, he added. With the exception of California and Washington, where bills failed, food disparagement statutes generally have breezed through state legislatures with the backing of the Farm Bureau and lobbying groups such as Runyon's. The impetus was a 1989 segment on CBS' 60 Minutes that said Alar, an apple growth regulator, was a possible carcinogen. The resulting scare drove down consumption even though not all apples were treated with Alar. Growers sued CBS, saying they lost $130 million. In 1993, a federal judge found that the growers did not disprove the statements made on the program. After seeing the growers lose in court, the food industry began pushing for legislation that would protect their products, Runyon said. "We drafted the model bill to address the frustration of farmers and ranchers and others who felt they didn't have recourse to outrageous comment," he said. "You can say, `I don't like broccoli.' But if you say it causes cancer, that's not true and that's what we're after. It's really not an infringement of the First Amendment." Lawyers on the other side see it differently. "If these bills had been in effect in the 1950s and `60s, Rachel Carson would have been hounded into bankruptcy and her criticism would never have seen the light of day," said Bruce Johnson, a Seattle attorney who successfully defended CBS in the Alar case. Carson is the author of Silent Spring, which exposed environmental hazards of DDT. "You have a statute on the books,'' Johnson said. "Whether it's constitutional or not, you have the expense of fighting that all the way to a higher court. That in itself is a significant deterrent to free speech." Emory's Bederman said the real legal test will be the Winfrey case, not the emu ranchers' action against Honda. The carmaker's humorous TV commercial, aired long after the speculative emu market plummeted, depicts a young man in a Honda zipping from one weird job interview after another. At one stop, a folksy rancher insists that emus are the "pork of the future." "The commercial itself was parody," the law professor said. It was no laughing matter to 10 Huntsville-area emu ranchers, who say their flocks were worth $75,000 less after the ads ran. Taken more seriously is the case against Winfrey. Amarillo feedlot owner Paul Engler said he lost $6.7 million after Howard Lyman, a Montana rancher-turned-Humane Society official, said on Winfrey's talk show that unsalable cows were being ground up and fed to other cattle, creating the risk of so-called mad cow disease in the United States. And such an outbreak could "absolutely" rival AIDS, he asserted. His remarks prompted Winfrey to exclaim: "It has just stopped me cold from eating another burger!'' Other guests on the April 16, 1996, show said the feeding of beef and bone meal to cattle was rare. Two months later, the U.S. Department of Agriculture stopped the practice even though mad cow disease has not been reported in the United States. There has been no scientific link between the bovine ailment and Creutzfeldt-Jakob disease, a disorder that similarly attacks the human brain, causing dementia and loss of muscle control. But researchers in Britain believe mad cow disease is the likely cause. Winfrey's program occurred during the height of the mad cow panic in Britain, and U.S. cattle producers were already hurting because of low prices, drought and high feed costs. Engler and seven other parties involved in the cattle industry filed suit under Texas' 1995 False Disparagement of Perishable Food Products statute, even though the talk show invited back an industry representative to clarify his views. But couldn't suing the most popular daytime talk show host end up giving beef producers a collective black eye? A gag order prevented Engler and his attorneys from responding. But Runyon, the feed industry spokesman, said: "I don't think so. Regardless of what happens, I think the legislation is needed." Emory's Bederman disagrees. `'There are some lunatic fringe people in the food safety area," the law professor conceded. "But there are some hard-working conscientious people in the grass roots who are concerned about the integrity of our food and these people are being muzzled." In one sense, Winfrey is lucky she's being sued in Texas. According to Bederman's analysis of food libel laws in Alabama and Oklahoma, anyone bad-mouthing a food item in those states can be found liable even for statements they didn't know were false.