MAY 1998 · VOLUME 19· NUMBER 3

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 interests.

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 and other animals to cows -- and Oprah responded that the revelation would stop her from eating another burger.

THE SEEDS OF VEEGIE 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 legislation widely.

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 her views."

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 food-disparagement laws.

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. Portions of this article first appeared in the Baltimore Sun (Feb. 1, 1998) and in the Legal Times (March 23, 1998, with Paul McMasters).