Food Disparagement Laws Essay, Research Paper

Food Disparagement Law

Food Disparagement Law or “Veggie Libel Law” describes the new libel laws that impose penalties on anyone who comments about perishable food products in a manner deemed inconsistent with “reasonable or reliable scientific inquiry.” 

Food disparagement laws began cropping up in the early 1990’s, after a consumer scare over the pesticide Alar, a chemical used to lengthen the time that apples ripen on trees. In 1989, the CBD news program “60 Minutes” broadcast a report that said Alar could cause cancer. Washington State apple growers filed a defamation lawsuit, contending they lost $100 million in a consumer panic after the story aired. The suit, however, was dismissed on grounds that the alleged defamation was directed at a product, and that food could not be defamed. The controversy over Alar so unnerved farmers and other food producers that it prompted them to seek special protection for perishable foods.

Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota and Texas have adopted the so-called “veggie libel.” These laws put agriculture products on equal footing with other commodities, protecting them from false, negative claims. Name brand products are protected by libel trademark laws. Even individuals can protect themselves under libel and slander laws. But generic products, like fruits, vegetables, and meat don’t have that same protection under the law. The problem is made even more pronounced when those products are perishable. Producers can’t store their products in a warehouse while they try and prove that negative claims are untrue. American Farm Bureau governmental relations specialist John Keeling has likened these false food claims to the 1st amendment equivalent of yelling “fire” in a crowded theater.

The first case to test the new “veggie libel” laws was The Cattlemen versus Oprah Winfrey.

On April 16th 1996, Oprah aired a show titled “Dangerous Foods.” On this particular show she had guest speaker, Howard Lyman, a vegetarian activist and an official with the Humane Society of the United States, speak on Bovine Spongiform Encephalopathy (BSE) otherwise known as “mad cow” disease. During the show, Howard Lyman said “mad cow” disease in the United States “absolutely” could rival AIDS as an epidemic. In addition, he said it already is rampant among cattle in America. After hearing some of Lyman’s statements, Ms. Winfrey responded: “It has stopped me cold from eating another hamburger. I’m stopped!” After the broadcast, cattle prices plummeted to near ten-year lows.

“Mad Cow” disease or BSE has never been detected in the United States. No definitive links have been found between BSE and a human form of the illness.

Paul Engler, owner of Cactus Feeders Inc. in Amarillo, Texas, and other local cattlemen were so incensed by the program that they filed a lawsuit, claiming more than $12 million in losses.

The parties include Paul Engler and his company, Cactus Feeders Inc.; Texas Beef Group; Maltese Cross Cattle Company; Bravo Cattle Company; Alpha 3 Cattle Company; and Dripping Springs Inc. on the plaintiff side and Oprah Winfrey; Harpo Productions Inc.; and Howard Lyman on the defendant side.

The Nature of the Lawsuit results from the disparaging, slanderous, and defamatory statements published on the April 16, 1996 edition of the Oprah Winfrey Show. The carefully and maliciously edited statements were designed to hype the ratings at the expense of the American cattle industry. In the stampede to win the ratings race, the truth is often the first to get trampled. In addition to lambasting the American cattle industry, the statements disparaged the safety of American beef, and intentionally placed unfounded and unwarranted fear in the beef consumer’s mind. As a direct result of what had been called the “Oprah Crash,” the cattle industry suffered millions of dollars in cattle losses and in some cases permanent loss of confidence in beef product by many beef consumers.

The Cause of Action in this case is False Disparagement of Perishable Food Products which includes the violation of Chapter 96 of the Texas Civil Practices and Remedies Code, which establishes liability if someone intentionally disseminates false information about a perishable food product. Business Disparagement, Negligence and Negligence Per Se, Slander, Slander Per Se, and Defamation, and Libel and Libel Per Se were other Causes of Action.

An important argument of the trial was whether or not beef was a perishable food. The argument for perishability is that once cattle have reached their optimum finish point, the cost of adding additional weight (gain) rises exponentially. For example, an average cost of gain to finish a steer in today’s environment is about $.50 per pound. The cost of adding gain beyond the finish point is closer to $1.00 per pound. Live finished cattle market last week in Texas was $.73 per pound. So there is an economic point where holding cattle in inventory becomes much more costly than what the market will pay.

Oprah Winfrey won in the case pressed against her and Harpo Productions by Texas Cattlemen. U.S. District Court Judge Mary Lou Robinson held that cattle did not fall within the law’s definition of “perishable food product,” and dismissed the food-disparagement claim before sending the case to the jury. The case went forward on a conventional business-defamation claim, which required the cattlemen to show the Ms. Winfrey deliberately intended to harm the beef industry. That case is now on appeal to the 5th U.S. Court of Appeals.

The Oprah vs. Texas Cattlemen case raises important questions Americans have debated for centuries. Many people question whether laws forbidding disparaging comments about food products constitute reasonable economic protection for ranchers, farmers, and other agricultural producers or amount to unconstitutional interference with the right to engage in free and open debate. Ronald Collins, director of the Food Libel Project for the Center for Science in the Public Interest said, “The statues have a very chilling effect on individuals because of the enormous costs involved in litigating these cases. Anybody who wants to be critical of food has to be prepared to be the subject of a multi-million dollar lawsuit.” The Humane Society of the United States agreed. On the other side of the fence, Rex Runyon, vice president of the American Feed Industry Association, said, “the laws were not designed to stifle free speech. I know there’s been some concern about free speech and freedom of the press, that’s really not something that should be a worry for people learning about this law. The law says you can not willingly and knowingly make a false statement about a product.” Frank Newton, dean of the Texas Tech University Law School, said “The Supreme Court has made it clear that even when you get into an area involving commerce and property rights, the First Amendment still plays a prominent role.”

Since the Oprah vs. the Texas Cattlemen case there have been many cases to follow under the new “veggie libel.” Some of the cases are Ben & Jerry Ice Cream vs. the State of Illinois; Miller, Coors and Boston Beer Company vs. the Missouri Division of Liquor Control; McDonald’s Corp. vs. Helen Steel; and Texan Emu Ranchers vs. Honda Motor Company.

The new Food Disparagement Laws intent is to hold someone accountable for making damaging statements. It was a shock to farmers and ranchers that so much damage could be caused by a false and misleading report. But the Alar scare and Oprah Winfrey’s alarm about beef are not isolated incidents. Farmers and food products are under attack by all sorts of people with there own agendas. They include animal rights and vegetarian groups, consumer activists, radical environmentalists and disgruntled union employees. Their targets have ranged from strawberries and grapes to meat and milk. Farmer’s don’t want to stop public discourse about food and food related issues. In fact, they would like to see more reporting of these issues. They only ask that it be balanced and fair. Their concern is that individuals promoting some philosophy or private agenda will dupe the news media and entertainment figures into spreading lies about food product and farm prices.

Oprah Winfrey vs. Texas Cattlemen was especially interesting to me for three reasons. First of all, I grew up in Amarillo, Texas. Most of the people I grew up with had some connection to the beef industry. Secondly, my father is the president of a cattle company and is very involved in the Texas Cattle Feeders Association, and the National Cattlemen’s Association. I also have met Paul Engler, the man who pressed charges against Oprah. Finally, I’m a big fan of Oprah. I think she has a very positive effect of television with the exception of the April 16th 1996 show.