Agribusiness Seeks to Stifle Speech
by Ronald K. L. Collins
Multinational Monitor magazine , May 1998
The costs of free speech are rising. Thanks to "veggie-libel"
laws, speaking about the safety of the food supply may result
in a long and expensive lawsuit, a huge damages award or criminal
sanctions. Even if the speaker prevails in court, he or she must
still bear the litigation costs.
A dozen states-Alabama, Arizona, Florida, Georgia, Idaho,
Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota
and Texas-have adopted food-disparagement statutes stipulating
that food critics may be held civilly liable for claiming any
"perishable food product or commodity" is unsafe for
human consumption. A thirteenth state, Colorado, makes "libeling"
food a crime. In California and Michigan, industry is pushing
to get such laws on the books. Agribusiness also tried, unsuccessfully,
to include a similar provision in the 1996 federal farm bill.
Many of the food-disparagement laws punish First Amendment-protected
expression, establish a lower standard for civil liability, allow
for punitive damages and attorneys fees for plaintiffs alone,
and lend themselves to abusive litigation practices. Moreover,
in most states that have enacted these laws, food critics must
demonstrate that their claims are grounded in reliable scientific
facts and data. The net effect is to carve out a special law of
defamation for the food industry-one benefiting special business
It was the Texas food-disparagement law that gave rise to
Texas ranchers' $10.3 million lawsuit against television talkshow
host Oprah Winfrey and vegetarian activist Howard Lyman. The suit
was filed after Lyman, on Winfrey's show, described factory farm
practices-including the feeding of "rendered" cattle
and other animals to cows-and Oprah responded that the revelation
would stop her from eating another burger.
THE SEEDS OF VEGGIE LIBEL LAWS
The campaign for food disparagement laws grew out of the Alar
controversy, nearly a decade ago. After a 1989 "60 Minutes"
episode highlighted warnings by the Natural Resources Defense
Council (NRDC) and actress Meryl Streep about the hazards of the
plant growth regulator Alar (used on apples) and other pesticides,
apple sales plummeted. Soon, Alar's maker, Uniroyal, removed it
from the market.
The Alar case demonstrated how well-packaged information from
public interest groups could mobilize consumer action.
Apple growers sued "60 Minutes" for the Alar report
under traditional common law, and lost. A federal district court
ruled that their claim of disparagement-the notion that the "60
Minutes" program injured the value of their property-required
the growers to meet a high standard of proof, including a demonstration
that the show's accusations were false. Concluding that the growers
could not meet this high standard, the court dismissed their claim
on summary judgment, before a jury was ever selected. The Court
of Appeals for the Ninth Circuit affirmed the judgment and the
U.S. Supreme Court declined to review the growers' appeal.
According to Steve Kopperud of the American Feed Industry
Association, his group arranged with Dennis Johnson of the Washington,
D.C. law firm of Olsson, Frank & Weeda to draft model food-disparagement
legislation. Thereafter, the American Feed Industry Association
and the American Farm Bureau Federation distributed the model
THE LAW AND DISPARAGEMENT
Under the common law, it is only possible to defame a person
or corporation, not an object such as an apple.
In order for an allegedly defamatory statement to give rise
to a cause of action, the statement must be "of and concerning"
a particular person or corporation. Absent that, a claim is constitutionally
deficient. While standards vary by state and nature of a claim,
in general, the common law and First Amendment require a plaintiff
in a defamation or even disparagement case to prove an allegedly
defamatory statement was untrue and that the speaker knew or should
have known that it was untrue. First Amendment and state constitutional
cases likewise suggest that the allegedly defamatory statements
must be made with actual malice.
Food-disparagement laws, says Professor Rodney Smolla, a noted
First Amendment authority at the William and Mary Law School,
"dilute First Amendment standards and/or undermine the spirit
of the principles underlying them. Some blur the line between
expressions of opinion and false statements of fact. Others permit
liability to be predicated on mere negligence, as opposed to knowing
or reckless falsity. Still others appear to shift the burden of
proof from the public figure plaintiff to the speaker."
VEGGIE LIBEL CHILL
The veggie-libel laws' broad sweep and lax standards cast
an intimidating shadow over citizen activists and independent-minded
reporters and publishers, including book publishers.
In states with food-disparagement laws, comment on the health
dangers of bacteria in meats and poultry, the threat of bacterial
infection from raw oysters, sulfites in salads, nitrites in bacon
and other processed foods, cholesterol in eggs, fat in milk and
meat, food dyes, polluted fish, Alar-sprayed apples, pesticide-treated
foods, non-pasteurized juices and contaminated grapes, among many
other examples, could subject the speaker to a lawsuit.
Food disparagement laws invite industry "libel"
litigation against food critics-including critics such as the
American Cancer Society, the American Heart Association and the
Natural Resources Defense Council. In veggie-libel states, food
critics must prepare themselves for costly litigation whenever
they speak, regardless of the truth of their claims. The mere
threat of such litigation could silence many would-be critics.
The first Oprah case (there is now a second action in addition
to the first case which is on appeal) cost nearly a million dollars
to defend at the trial level alone.
"The realistic objective of the frivolous 'veggie-libel'
statutes and lawsuits is not money," says consumer advocate
Ralph Nader. "It is to send a chilling message to millions
of people that they better keep their opinions to themselves."
Individuals or media without the deep pockets to defend themselves
are especially vulnerable to the chilling effect. "A consumer
reporter for a small-market newspaper or TV station or a solo
scientist putting out a food-safety newsletter is ... very much
at the mercy of agribiz," noted a recent editorial in the
Press Journal of Vero Beach, Florida.
Food disparagement laws are the "descendants of criminal
sedition laws, which made it a crime to criticize public officials,"
says American Civil Liberties Union Executive Director Ira Glasser.
"Today, such laws are used almost exclusively by the powerful
to silence their critics."
The scientific evidence standard of the veggie-libel laws
further stands to discourage many critics, reporters and publishers
from saying virtually anything about food absent current and documented
scientific evidence, which quite often is impossible to determine
or in the sole possession of the industry being criticized.
The chilling effect of food-disparagement laws may extend
well beyond the immediate jurisdictions of the 13 states in which
they exist. These laws have a national impact insofar as they
subject internet users to runaway liability. For example, if a
public interest group made statements on its web site about food
and toxic waste, it might well be sued in any or all of the 13
states with these laws, even though the group may have no other
contact with these states. Similarly, insofar as book publishers
sell books in a national market, food-disparagement laws affect
their decisions as to how robust an author's statements may be.
The cumulative effect of the veggie-libel laws will be most
severe in deterring expression of new and controversial ideas
about which the scientific community has not yet reached consensus.
On this point Senator Patrick Leahy, D-Vermont, has noted that
"one of the pioneers of the movement toward healthier eating-Adelle
Davis-raised many food safety and health issues based on her own
research. Her views were not accepted by the scientific community
at the time. Now the weight of medical evidence- including former
Surgeon General Koop's Report on Nutrition and Health-has vindicated
The spread of food-disparagement laws may even have consequences
outside of the particular matters to which the laws apply. A court
victory for existing food laws could invite industry to push for
all sorts of similar disparagement laws concerning everything
from fast food to alcohol, and perhaps onto other consumer topics,
such as auto safety. The net result: far less public talk about
food and perhaps other consumer products by far fewer people.
THE THREAT MADE REAL
The initial, ongoing and new lawsuits against Oprah Winfrey
and Howard Lyman have brought attention to the threats posed by
Winfrey and Lyman won their first case. Judge Mary Lou Robinson
threw out the food disparagement claim with a ringing, "It
would be difficult to conceive of any topic of discussion that
could be of greater concern and interest to all Americans than
the safety of the food that they eat." And a jury rejected
the cattle growers' common law claims.
But the case did not resolve whether veggie-libel laws violate
the First Amendment. Unless that question is answered -and soon-others
who lack the public profile or private resources of Winfrey could
be dragged off to court for speaking out about food and food safety.
To "reclaim the First Amendment," the Center for
Science in the Public Interest has organized a coalition of some
30 groups to oppose food disparagement laws. The Foodspeak Coalition
consists of a variety of public interest, health and nutrition,
civil liberties, environmental and media groups, including Public
Citizen, ACLU, United Farm Workers, Society of Professional Journalists,
Publishers Marketing Association, Electronic Frontier Foundation
and the Environmental Working Group. The Foodspeak campaign plans
to contest food-disparagement laws on legislative, judicial and
public information fronts.
The Coalition has plenty of work ahead of it, as evidenced
by a recent lawsuit filed by Buckeye Egg Company of Ohio against
the Ohio Public Interest Research Group (Ohio PIRG) and one of
its employees, Amy Simpson.
The egg producer, which is represented by the giant law firm
Jones, Day, Reavis & Pogue, alleged that the defendants, during
the course of a press conference announcing a consumer action
against Buckeye Egg, falsely and knowingly misrepresented that
the company washed and repackaged old eggs for resale, and that
such practices could be dangerous to public health.
The defendants countered that their charges were based on
numerous interviews with and sworn statements by the company's
own employees "who knew of the repackaging." NBC's "Dateline"
recently confirmed the charge against Buckeye Egg of back-dating
and reselling eggs.
Such facts notwithstanding, Simpson is being sued for saying:
"[W]e have no idea how many, if any, consumers have been
made ill by consuming these eggs." According to Buckeye's
legal complaint, that statement was sufficiently "outrageous"
to warrant a claim for compensatory and punitive damages plus
attorneys fees (available under Ohio's law to plaintiffs only).
"The cost of speaking out has been high," says Amy
Simpson. "All of us at Ohio PIRG have had to commit enormous
amounts of time, energy, and resources to defend ourselves in
this lawsuit. We have had to endure attacks by Buckeye's law firm,
Jones, Day, one of the largest law firms in the world."
For that reason, Ralph Nader, Ira Glasser of the American
Civil Liberties Union and Michael Jacobson, executive director
of the Center for Science in the Public Interest, sent a letter
on May 1 to Andy Hansen, president of Buckeye Egg Company, urging
the company "to unconditionally drop this action immediately."
The letter states, "If you disagree with Ms. Simpson,
debate her. If you feel strongly about the matter, use your resources
to respond to her. But do not try to intimidate her by forcing
her into impoverishment defending a lawsuit which you cannot ultimately
win. This is not the American way."
Ronald K. L.Collins is the director of the Foodspeak Project,
a coalition of civil liberties, public interest, environmental,
trade association and media groups organized by the Center for
Science in the Public Interest to fight food disparagement laws.
The Foodspeak website is at http://www.cspinet.org/foodspeak/