Appellate Brief (1994) for CBS in Alar Case

Note: The following is the brief presented by the Appellees (CBS, et al) in the 1994 Alar case in which Washington State apple growers sued CBS. Mr. Bruce E. H. Johnson, Esquire, and P. Cameron DeVore, Esquire, successfully argued the case for the Defendants-Appellees. They are with the law firm of Davis, Wright, &Tremaine (206) 628-7683 / e-mail: brucejohnson@dwt.com. NB: In order to prepare this document for inclusion on the Web, certain notes had to be deleted.
The District Court and Ninth Circuit opinions in this case may be found on this Web site.

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT


NO. 93-35963


GRADY AUVIL, et al.,

Appellants,

vs.

CBS "60 MINUTES," et al.,

Appellees.


ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WASHINGTON


BRIEF OF APPELLEE CBS INC.


Bruce E. H. Johnson
P. Cameron DeVore
Christopher Pesce
William C. Komaroff
DAVIS WRIGHT TREMAINE
2600 Century Square
1501 Fourth Avenue
Seattle, WA 98101
(206) 622-3150
Douglas P. Jacobs
Susanna M. Lowy
Anthony M. Bongiorno
CBS INC.
51 W. 52nd St.
New York, NY 10019
(212) 975-5236
Attorneys for Appellee CBS Inc.

CORPORATE DISCLOSURE STATEMENT UNDER F.R.A.P. 26.1

CBS Inc. has no parent companies, subsidiaries, or affiliates that have issued shares to the public.

TABLE OF CONTENTS

INTRODUCTION 1

STATEMENT OF JURISDICTION 2

STATEMENT OF ISSUES AND STANDARD OF REVIEW 2

STATEMENT OF THE CASE 2

I.    PROCEDURAL HISTORY OF THE LAWSUIT 2

II.   FACTUAL BACKGROUND 3

A. The Regulatory History of Alar Before the 60 MINUTES Report. 3
B. The "`A' Is for Apple" Broadcast 9
C. The Regulatory History of Alar 11
D. Comparison of NRDC and EPA Risk Calculations 13

SUMMARY OF ARGUMENT 14

ARGUMENT 14

I. SUMMARY JUDGMENT SHOULD BE AFFIRMED BECAUSE THE BROADCAST WAS NOT "OF AND CONCERNING" APPELLANTS. 14

A. The "Of and Concerning" Requirement Applies to Appellants' Product Disparagement Claim. 15
B. Appellants Have Not Shown That the Broadcast Was "Of and Concerning" Them or Their Specific Products. 17

II. THE DISTRICT COURT PROPERLY GRANTED SUMMARY JUDGMENT ON THE ISSUE OF FALSITY 23

A. Appellants Had to Show by Clear and Convincing Evidence That the Central Message of the Broadcast Was Verifiably False 23
B. Appellants Cannot Meet Their Burden Because the Gist of the Broadcast Is Unverifiable 24
C. Evidence of Scientific Debate Does Not Raise an Issue of Fact 29
D. Individual Components of the Broadcast's Message Are Substantially True. 32

CONCLUSION 35

TABLE OF AUTHORITIES

CASES

Ajay Nutrition Foods, Inc. v. FDA, 378 F. Supp. 210 (D.N.J. 1974), aff'd, 513 F.2d 625 (3d Cir. 1975) 19

Auvil v. CBS "60 Minutes", 800 F. Supp. 928 (E.D. Wash. 1992)3, 10, 19, 20, 32

Auvil v. CBS "60 Minutes", 800 F. Supp. 941 (E.D. Wash. 1992)3, 33, 34

Auvil v. CBS "60 Minutes", 836 F. Supp. 740 (E.D. Wash. 1993)3, 23, 25, 26, 31, 35

Barger v. Playboy Enters., Inc., 564 F. Supp. 1151, (N.D. Cal. 1983) aff'd, 732 F.2d 163 (9th Cir.), cert. denied, 469 U.S. 853 (1984)16

Blatty v. New York Times, 42 Cal. 3d 1033, 728 P.2d 1177, 232 Cal. Rptr. 542, (1986), cert. denied, 485 U.S. 934 (1988)16, 17, 21

Bose Corp. v. Consumers Union, 466 U.S. 485 (1984)16

California Canners & Growers Ass'n v. United States, 7 Ct. Cl. 69 (1984)17, 18, 20

Camer v. Seattle Post-Intelligencer, 45 Wn. App. 29, 723 P.2d 1195 (1986), rev. denied, 107 Wn.2d 1020, cert. denied,

482 U.S. 916 (1987)25

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)26, 34

Crane v. The Arizona Republic, 972 F.2d 1511 (9th Cir. 1992)30

Dairy Stores, Inc. v. Sentinel Pub. Co., 104 N.J. 125, 516 A.2d 220 (1986)32

Dorsey v. National Enquirer, 973 F.2d 1431 (9th Cir. 1992)21

Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961)30

Edwards v. National Audubon Soc'y, 556 F.2d 113 (2d Cir.), cert. denied, 434 U.S. 1002 (1977)30

Environmental Def. Fund v. EPA, 548 F.2d 998 (D.C. Cir. 1976), cert. denied, 431 U.S. 925 (1977)28, 31

Flotech, Inc. v. E.I. DuPont de Nemours & Co., 627 F. Supp. 358 (D. Mass. 1985), aff'd on other grounds, 814 F.2d 775 (1st Cir. 1987)17, 18

Gintert v. Howard Pubs., Inc., 565 F. Supp. 829 (N.D. Ind. 1983)18

Golden North Airways v. Tanana Pub. Co., 218 F.2d 612 (9th Cir. 1954)20

Greenbelt Coop. v. Bresler, 398 U.S. 6 (1970)35

Herron v. KING Broadcasting Co., 112 Wn.2d 762, 776 P.2d 98(1989)23, 32

Hoppe v. Hearst Corp., 53 Wn. App. 668, 770 P.2d 203 (1989)24

Hustler Magazine v. Falwell, 485 U.S. 46 (1988)16

Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 567 N.E.2d 1270, 566 N.Y.S.2d, cert. denied, 111 S. Ct. 2261 (1991)31

Int'l Fabricare Inst. v. U.S. EPA, 972 F.2d 384 (D.C. Cir. 1992)28, 31

Jewel Cos. v. Pay Less Drug Stores Northwest, 741 F.2d 1555 (9th Cir. 1984)14

Kentucky Fried Chicken v. Sanders, 563 S.W.2d 8 (Ky. 1978)18

Koch v. Goldway, 817 F.2d 507 (9th Cir. 1987)30

Lee v. The Columbian, Inc., 64 Wn. App. 534, 826 P.2d 217 (1991)25

Margoles v. Hubbart, 111 Wn.2d 195, 760 P.2d 324 (1988)23

Mark v. Seattle Times, 96 Wn.2d 473, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124 (1982)19, 23, 30, 32, 33

Matsushita Elec. v. Zenith, 475 U.S. 574 (1986)31

McCabe v. Rattiner, 814 F.2d 839 (1st Cir. 1987)25

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)29

Michigan United Conservation Clubs v. CBS News, 485 F. Supp. 893 (W.D. Mich. 1980), aff'd, 665 F.2d 110 (6th Cir. 1981)17, 18, 22

Mid-State Fertilizer v. Exchange Nat'l Bank, 877 F.2d 1333 (7th Cir. 1989)25

Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)24, 30, 35

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)30

Nader v. United States EPA, 859 F.2d 747 (9th Cir. 1988), cert. denied, 490 U.S. 1034 (1989)11

National Nutritional Foods Ass'n v. Whelan, 492 F. Supp. 374 (S.D.N.Y. 1980)17, 19

National Union Fire v. Argonaut, 701 F.2d 95, (9th Cir. 1983)31

New York Times v. Sullivan, 376 U.S. 254 (1964)15, 16, 20, 22

Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984), cert. denied, 471 U.S. 1127 (1985)24

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986)23, 24, 29, 30

Pierce v. Capital Cities Comm'ns, Inc., 576 F.2d 495 (3d Cir.), cert. denied, 439 U.S. 861 (1978)35

Rano v. Sipa Press, Inc., 987 F.2d 580 (9th Cir. 1993)2

Richardson v. Richardson-Merrill, Inc., 649 F. Supp. 799 (D.D.C. 1986), aff'd, 857 F.2d 823 (D.C. Cir. 1988), cert. denied, 493 U.S. 882 (1989)29

Rosenblatt v. Baer, 383 U.S. 75 (1966)16

Rouch v. Enquirer & News, 440 Mich. 238, 487 N.W.2d 205 (1992), cert. denied, 113 S. Ct. 1401 (1993)33

Schuster v. U.S. News & World Rep., 459 F. Supp. 973 (D. Minn. 1978), aff'd, 602 F.2d 850 (8th Cir. 1979)18, 22

Sims v. KIRO, Inc., 20 Wn. App. 229, 580 P.2d 642, rev. denied, 91 Wn.2d 1007 (1978), cert. denied, 441 U.S. 945 (1979)15, 17, 20

Spelson v. CBS, Inc., 581 F. Supp. 1195 (N.D. Ill. 1984), aff'd without op., 757 F.2d 1291 (7th Cir. 1985)26, 30

Synthetic Organic Chem. Mfrs. Ass'n v. Brennan, 506 F.2d 385 (3d Cir. 1974), cert. denied, 420 U.S. 973 (1975)31

Unelko Corp. v. Rooney, 912 F.2d 1049 (9th Cir. 1990), cert. denied, 499 U.S. 961 (1991)16, 20, 24, 34

Villari v. Terminix Int'l, 692 F. Supp. 568 (E.D. Pa. 1988)28

Waring v. William Morrow Co., Inc., 821 F. Supp. 1188 (S.D. Tex. 1993)24

Weatherhead v. Globe Int'l, 832 F.2d 1226 (10th Cir. 1987)18

World Boxing Council v. Cosell, 715 F. Supp. 1259 (S.D.N.Y. 1989)25

 

STATUTES

7 U.S.C.  136(bb)9

7 U.S.C.  136w(d)5

15 U.S.C.  2603(f)9

Federal Food, Drug and Cosmetic Act, 21

U.S.C.  348(c)(3)(A)28

Federal Insecticide, Fungicide and Rodenticide

Act ("FIFRA"), 7 U.S.C.  136-136y5, 9, 34

The Toxic Substances Control Act ("TSCA"),

15 U.S.C.  2601-299, 28

 

REGULATIONS

40 C.F.R.  154.7(a)(2)(I)27

40 C.F.R.  158.153, 158.1554

37 Fed. Reg. 13,369 (1972)33

48 Fed. Reg. 46,234 (1983)33

50 Fed. Reg. 10,372 (1985)28

51 Fed. Reg. 33,992, (1986)29

54 Fed. Reg. 22,558, 22,564 (1989)11

56 Fed. Reg. 63,798 (1991)27

57 Fed. Reg. 46,436, 46,436 (1992)3, 11, 12

57 Fed. Reg. 46,436, 46,437 (1992)4, 5, 8

 

OTHER SOURCES

Alar, Aflatoxin Used to Illustrate Comparative Risk Problems, Food Chemical News, Dec. 20, 199333

Cal. Env. Prot. Agency, Risk-Specific Intake Level for Proposition 65 Carcinogen 1,1 - Dimethyldydrazine (UDMH) (1992)33

E. Crouch & R. Wilson, Interspecies Comparison of Carcinogenic Potency, 5 J. Toxicology & Envtl. Health 1095 (1979)27

Reto Engler, EPA Memo "List of Chemicals Evaluated for Carcinogenic Potential" (Oct. 14, 1992)12, 33

EPA Mem. from William Pepelko through William Farland, Director Carcinogen Assessment Group, to Eileen Claussen, Director Characterization and Assessment Division at 1 (Jan. 9, 1987)6, 8

EPA, Daminozide Special Review Technical Support Document - Preliminary Determination to Cancel the Food Uses of Daminozide II-1 (May 1989)11, 13, 14

EPA, Draft Daminozide Special Review Position Document 2/3/4 II-29-30 (Sept. 12, 1985)5

EPA, Peer Review of Daminozide (Alar) and UDMH (Unsymmetrical 1,1-dimethylhydrazine) 8 (undated)7

EPA, Second Peer Review of Daminozide (Alar) and UDMH (Unsymmetrical 1,1-dimethylhydrazine) 2-3 (May 1989)5, 9

EPA, Third Peer Review of Daminozide and its Metabolite/Breakdown Product 1,1 Dimethylhydrazine 1 (July 26, 1991)4

Food Safety Issues, 101st Cong., 1st Sess. 57 (1989)8, 9

L.S. Gold et al., Rodent Carcinogens: Setting Priorities, 258 Science 261 (1992)28, 33

D. Goodman, Review of Blood Vessel Neoplasms and Neoplasms of Lung, Kidney, and Liver in Swiss Mice Administered 1,1-Dimethylhydrazine in Drinking Water (Aug. 1985)7

Government Regulation of Pesticides in Food, S. Rep. No. 55, 101st Cong., 1st Sess. 36, 61-62 (1989)6

H. Guess et al., Uncertainty Estimates for Low-Dose-Rate Extrapolations of Animal Carcinogenicity Data, 37 Cancer Res. 3475 (1977)27

Health Effects of Pesticide Use On Children: Hearing Before the Subcomm. on Children, Family, Drugs and Alcoholism of the Senate Comm. on Labor & Human Resources, 101st Cong., 1st Sess. 32 (1989)28

IARC, IARC Monographs on the Evaluation of Carcinogenic Risks to Humans (7th Supp. 1987)27

Intolerable Risk: Pesticides in our Children's Food (1989)10, 13, 14, 33

S. Jasanoff, EPA's Regulation of Daminozide: Unscrambling the Messages of Risk, 12 Sci. Tech. & Hum. Values 116 (1987)6

D. Lester, Wash. Apple Commission Advises to Halt Use of Alar Until Proven Safe, The Packer, July 19, 1986)8

A. Lewis, Make No Law: The Sullivan Case and the First Amendment 28-33 (1991)16

National Research Council ("NRC"), Pesticides in the Diets of Infants and Children 129 (1993)8, 13, 34

NRC, Issues in Risk Assessment 15-16 (1993)6, 27, 29

NRC, Regulating Pesticides in Food: The Delaney Paradox 54 (1987)12, 33

NRC, Risk Assessment in the Federal Government: Managing the Process (1983)27, 31

F. Perera & P. Boffetta, Perspectives on Comparing Risks of Environmental Carcinogens, 80 J. Nat'l Cancer Inst. 1282 (1988)28

Resp. to Dr. Wilkinson's March 27, 1986 Comments on the N.Y. State Dept. of Health's "Qualitative Assessment of the Carcinogenicity of Daminozide and UDMH in Rodents"7, 28

Restatement (Second) of Torts,  564 (1977)15, 18, 19

L. Roberts, Alar: The Numbers Game, 243 Science 1430 (1989)14, 32

R. Sack, Libel, Slander and Related Problems (2d ed., Sack & Baron, 1994)20

H. Sapolsky, The Politics of Risk, 119 Daedalus: J. of the American Acad. of Arts & Sciences 83 (1990)31

B. Sedgwick, Oxidation of Methylhydrazines to Mutagenic Methylating Derivatives and Inducers of the Adaptive Response of E. coli to Alkylation Damage, 52 Cancer Res. 3693 (1992)27

L. Tollefson et al., Comparison of the Cancer Risk of Methylene Chloride Predicted from Animal Bioassay Data with the Epidemiologic Evid., 10 Risk Analysis 429 (1990)27

L. Zeise et al., Alar in Fruit: Limited Regulatory Action in the Face of Uncertain Risks, in Analysis Comm'n & Perception Risk 275 (B.J. Garrick and W.C. Gekler eds. 1991)4

 

INTRODUCTION

In February 1989, CBS Inc. ("CBS") reported on 60 MINUTES that "Alar," a chemical sprayed on apples, had been found by the Environmental Protection Agency ("EPA") and the Natural Resources Defense Council ("NRDC") to be a potent carcinogen especially dangerous to children, and that Alar nevertheless remained on the market. Appellants and their experts have debated and criticized the data and conclusions of the NRDC and EPA both before and after the CBS broadcast. Yet the record below was utterly devoid of any evidence establishing Alar's safety and thus appellants were unable to prove that Alar does not cause cancer or that children were not at greater risk from exposure to Alar.

An unbroken line of Supreme Court precedent establishes that commentary on issues of public concern is constitutionally protected and may not form the basis of liability under any legal theory appellants may advance unless it is "of and concerning" the appellants and is provably false. Appellants advanced below, and the district court embraced, an alarming and unprecedented theory of recovery in this case. Under that theory, broadcasting various points of view about the EPA's regulation of a cancer-causing pesticide subjects CBS to liability to every apple grower in the United States. This sui generis theory eviscerates three decades of constitutional jurisprudence and makes a mockery of the First Amendment. Thankfully, the district court later ruled that appellants could not meet their burden of showing that the message of the broadcast was verifiably false. Under either analysis, however, the judgment below must be affirmed.

STATEMENT OF JURISDICTION

CBS agrees with appellants' statement of jurisdiction.

STATEMENT OF ISSUES AND STANDARD OF REVIEW

The issue presented for appeal is whether the district court properly entered summary judgment against appellants on their claim for product disparagement. The grant of summary judgment can and should be affirmed on two alternative grounds. First, the allegedly false statements were not "of and concerning" any of the appellants. Second, the district court properly determined that appellants failed to raise a material issue of fact as to the alleged falsity of the speech at issue.

This Court reviews the district court's grant of summary judgment de novo. Rano v. Sipa Press, Inc., 987 F.2d 580, 584 (9th Cir. 1993).

 

STATEMENT OF THE CASE

I. PROCEDURAL HISTORY OF THE LAWSUIT

On November 28, 1990, eleven Washington State apple growers filed a complaint in Yakima County Superior Court claiming, inter alia, product disparagement and naming as defendants CBS, local CBS affiliates, the NRDC, and Fenton Communications, Inc. ("Fenton"), a public relations firm used by the NRDC in 1989. CR 1, Ex. A. On December 27, 1990, defendants removed to the United States District Court for the Eastern District of Washington. CR 1. In connection with the removal, the CBS affiliate defendants were dismissed. Although the complaint was styled as a class action, plaintiffs never obtained certification of the purported class of 4,700 apple growers. CR 51.

In January 1992, CBS moved to dismiss because the broadcast was not "of and concerning" any of the plaintiffs. CR 59. The court refused to dismiss the claims brought against CBS,/ but later dismissed the claims against NRDC and Fenton, after holding that they had allegedly disparaged "at least the whole agricultural world." Auvil v. CBS "60 Minutes", 800 F. Supp. 941, 944 (E.D. Wash. 1992) ("Auvil II").

In July 1993, after extensive discovery on the allegations of falsity, including twelve expert witness depositions, CBS moved for summary judgment on the ground that the 60 MINUTES broadcast was not verifiably false. CR 164. Appellants cross-moved for partial summary judgment on the issue of falsity. CR 171. The district court entered summary judgment in favor of CBS on September 13, 1993, after concluding that appellants could not prove the broadcast false. Auvil v. CBS "60 Minutes", 836 F. Supp. 740 (E.D. Wash. 1993) ("Auvil III").

II. FACTUAL BACKGROUND

A. The Regulatory History of Alar Before the 60 MINUTES Report.

Daminozide, known by its trade name "Alar," is a chemical pesticide legally applied to a variety of fruits and vegetables in this country from the late-1960s until 1989. 57 Fed. Reg. 46,436, 46,436 (1992). Alar is a systemic pesticide, which cannot be casually observed or removed from food. Id.; Auvil I, 800 F. Supp. at 930. During the sixteen years preceding the CBS broadcast, scientists had repeatedly uncovered alarming evidence about the carcinogenicity of daminozide and of UDMH, which is a metabolite and breakdown product of daminozide. In studying Alar, EPA was most concerned with the risk from its breakdown product, UDMH. 57 Fed. Reg. 46,436, 46,437 (1992).

In 1973, Dr. Bela Toth published a study concluding that UDMH caused cancer in mice. Studies in 1977 and 1978 similarly confirmed that daminozide caused cancer in mice. In 1980, the EPA reviewed daminozide's registration and noted that "[b]oth [the Toth and National Cancer Institute ("NCI")] studies showed daminozide to be a carcinogen in mice." The Agency, however, cancelled its review after negotiating with Uniroyal Chemical Company, daminozide's manufacturer.

Four years later, in June 1984, EPA began the review process again. In August 1985, an EPA peer review committee reviewed all available toxicological data on daminozide and its metabolite UDMH and reached the conclusion that both were class B2, probable human, carcinogens. The EPA then drafted a Daminozide Special Review Position Document 2/3/4 (hereafter "PD 2/3/4") for submission to a scientific advisory panel in the elaborate procedure required by the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C.  136-136y. The position document reflected an unusually high degree of EPA concern. In its PD 2/3/4, the Agency identified both daminozide and UDMH as probable human carcinogens because of tumor incidence in multiple species of experimental animals.

In 1985, the Scientific Advisory Panel ("SAP") criticized EPA's position, claiming the animal cancer data relied on by the Agency in the PD 2/3/4 were insufficient to support a quantitative risk assessment./ The SAP recommended that EPA require additional data before banning daminozide or limiting its use. 57 Fed. Reg. 46,436, 46,437 (1992). The panel also criticized the Toth studies, from which EPA had calculated Alar's cancer potency, for iregular record keeping, poor quality control, use of non-concurrent controls, use of only one exposure level, and the likelihood that the maximum tolerated dose [MTD] was exceeded.

The EPA had already recognized these concerns./ Indeed, an independent review performed in 1985 at EPA's request had validated the basic conclusions of the first Toth study./ Following an additional evaluation of the various cancer studies in August 1985, moreover, an EPA Peer Review Committee noted that both Alar and UDMH produced significant increases in oncogenic responses at multiple tissue sites in different experiments in multiple species and strains of animals.

On this basis the Peer Review Committee agreed with the Agency's earlier conclusion, that both Alar and UDMH were "B2 category" carcinogens -- i.e., probable human carcinogens.

In 1987, as public concern and impatience was mounting,/ EPA's Carcinogen Assessment Group conducted yet another review of UDMH data, again stating that the evidence is more than adequate to classify [UDMH] as a carcinogen in animal test systems and a B2 chemical using EPA's weight-of-evidence classification system.

In January 1989, the Agency estimated, based on interim results of Uniroyal's own studies, that the dietary risk to the general population from daminozide/UDMH was 4.9 x 10-5, or 5 cancers in a group of 100,000 people -- which was 50 times an acceptable risk./ 57 Fed. Reg. 46,436, 46,437 (1992). On February 1, 1989, the Agency announced its finding of an "inescapable and direct correlation between exposure to UDMH and the development of life-threatening tumors in test mice."/ Next, the EPA Peer Review Committee met and reiterated its conclusion that both Alar and UDMH were probable human carcinogens./ As the EPA's Dr. Moore told Congress, the evidence relied on by the EPA "was suitable for a decision to say that indeed [Alar] was a carcinogen . . . ." Food Safety, at 24.

B. The "`A' Is for Apple" Broadcast.

On February 26, 1989, CBS broadcast the 60 MINUTES report entitled "`A' is for Apple." The broadcast addressed a range of topics, including the alleged failure of the FDA and the EPA to adequately regulate carcinogenic pesticides used on agricultural products, and the unreasonable amount of time the agencies may take to limit exposure from hazardous pesticides./ The broadcast noted that pesticides on fruit posed a particular risk to children because children consume more fruit per unit of body weight than adults, yet in calculating dietary risk from agricultural pesticides EPA did not appropriately account for children's increased lifetime risk. The chemical discussed most in the broadcast was daminozide, along with its breakdown product and contaminant, UDMH. (Another chemical discussed was benomyl, which was used on bananas.)

The CBS broadcast included calculations about the increased incidence of possible cancer cases attributable to exposure to daminozide --predictions that were based upon the NRDC's 1989 report entitled Intolerable Risk: Pesticides in our Children's Food (hereafter "Intolerable Risk") (CR 165, Ex. B, Slovic Dep. Ex. 23), which studied twenty-three pesticides used in the nation's food supply. CBS also reported that in the opinion of some individuals, including the NRDC's Janet Hathaway, Alar was the most potent carcinogen in the nation's food supply. The broadcast commented that children were most at risk, because they consume more fruits and juices than adults./ The broadcast noted that Uniroyal, the manufacturer of Alar, had declined to be interviewed but it included a statement from Uniroyal that ". . . any risk from daminozide or UDMH, if it exists, is negligible."/ See Auvil I, 800 F. Supp. at 937-41 (transcript of broadcast appended to opinion); CR 165, Ex. A, Frank Dep. Ex. 12 (transcript); CR 62, Ex. A (videotape of broadcast).

C. The Regulatory History of Alar Following the 60 MINUTES Report.

In May 1989, in the wake of the considerable public debate spawned by the NRDC's report, the broadcast, and by other commentators, the EPA again moved the Alar cancellation process forward. It issued a position document, PD 2/3, taking into account interim data from the Uniroyal animal studies. The Agency stated:

Considered with the results of the earlier oncogenicity studies on daminozide and UDMH, which showed the same tumor types as the newer Uniroyal studies, the Agency has classified both daminozide and UDMH as Group B2 chemicals, probably human carcinogens.

54 Fed. Reg. 22,558, 22,564 (1989). Agency scientists discussed the carcinogenicity studies evaluated in determining both daminozide and UDMH to be B2 carcinogens:

Several carcinogenicity studies serve as the historical basis of concern about the carcinogenic potential of daminozide and UDMH. These studies . . . suggested that daminozide is oncogenic in laboratory rats and mice, and UDMH is oncogenic in laboratory mice and hamsters.

In October 1989, Uniroyal asked the EPA to withdraw all of Alar's food-use registrations. 57 Fed. Reg. 46,436, 46,436 (1992).

Finally, on October 8, 1992, the EPA issued a final notice concluding that the dietary risk posed to the general population in 1989 was unreasonable and the Agency does not intend to change its regulatory position on the food-uses of daminozide.

Id. at 46,438. Although Uniroyal continued to argue that EPA's classification of daminozide as a B2 (probable human) carcinogen was inappropriate, the Agency retained the B2 classification for daminozide. Id. at 46,440.

The EPA uses animal studies to generate a chemical's cancer potency factor (its so-called q*),/ which is combined with exposure data to determine cancer risk to humans. In 1992, three years after the CBS broadcast, EPA revised the UDMH cancer potency factor downward by a factor of two, but did not change its conclusion that the cancer risks to consumers posed by Alar and UDMH were unreasonable and that the chemical should remain off the market.

D. Comparison of NRDC and EPA Risk Calculations.

The NRDC's calculations in 1989 relied upon EPA's data, with some refinements. In Intolerable Risk, for example, NRDC calculated the lifetime carcinogenic risk from UDMH to be (24 x 10-5) while EPA calculated the lifetime carcinogenic risk from UDMH to be (4.9 x 10-5)./ NRDC risk calculations were higher than EPA's calculations by about a factor of five for three reasons: (1) NRDC based its calculation on children's intake of pesticides for the first five years of life,/ while EPA based its calculation on the average intake of pesticides over a lifetime;/ (2) NRDC took into account the latency period of cancer and thus gave increased weight to early exposure, while EPA weighted exposure at any age equally;/ and (3) NRDC used the UDMH cancer potency factor EPA had used until 1989 (q* = 8.9 (mg/kg/day)-1), while EPA used a new UDMH q* based on interim studies by Uniroyal (0.88 (mg/kg/day)-1)./ As the broadcast made clear, however, "both EPA and NRDC want[ed] Alar off the market, though they differ[ed] on the urgency of the problem . . . ." In fact, the EPA's and NRDC's risk estimates are "not that far apart. [Even a] factor of 25 difference is well within the range of what two reasonable people, using similar data and reasonable assumptions, might come up with."

SUMMARY OF ARGUMENT

The CBS broadcast was not "of and concerning" these particular appellants. Thus they failed to satisfy a fundamental First Amendment requirement. The district court erred in not dismissing the case on that ground. The court did hold correctly that the central message of the broadcast and the individual statements contained within it were either substantially true or were not provably false. Either ground requires affirmance.

ARGUMENT

I. SUMMARY JUDGMENT SHOULD BE AFFIRMED BECAUSE THE BROADCAST WAS NOT "OF AND CONCERNING" APPELLANTS.

On appeal, this Court is obliged to affirm the summary judgment if the district court's order can be sustained on any ground supported by the record. Jewel Cos. v. Pay Less Drug Stores Northwest, 741 F.2d 1555, 1564-65 (9th Cir. 1984). The contents of the 60 MINUTES broadcast are an undisputed part of the record. The broadcast discusses Alar and apples generally, without mentioning Washington growers, Washington apples, or any of these appellants. Controlling First Amendment law and governing state law require affirmance because the broadcast was not "of and concerning" the appellants.

A. The "Of and Concerning" Requirement Applies to Appellants' Product Disparagement Claim.

In Washington, as elsewhere, a plaintiff claiming defamation has the burden of showing that the allegedly defamatory speech was "of and concerning" him or her.

This requirement is a constitutional threshold, as the Supreme Court recognized in New York Times v. Sullivan, which held that "an otherwise impersonal attack on governmental operations" could not be converted into a libel of the official responsible for those operations. 376 U.S. 254, 292 (1964). In Sullivan, as here, the plaintiff sought to transform generalized criticism of government into a private cause of action against a media defendant. In Sullivan, as here, the plaintiff presented evidence of damages, which allegedly established that the statements in question were understood by the public as referring to him individually. In Sullivan, the Supreme Court ruled as a matter of First Amendment law that the evidence offered against the defendants in that case was "constitutionally defective" because it was incapable of supporting a jury finding that the allegedly libelous statements were made "of and concerning" the plaintiff. Id. at 288; accord Rosenblatt v. Baer, 383 U.S. 75, 82 (1966) (reversing a defamation award where instruction allowed recovery in the absence of evidence that statement was "of and concerning" plaintiff). Rosenblatt made it plain that the "of and concerning" requirement derives directly from the First Amendment. Blatty v. New York Times, 42 Cal. 3d 1033, 1042, 728 P.2d 1177, 1183, 232 Cal. Rptr. 542, 547 (1986), cert. denied, 485 U.S. 934 (1988); see also Barger v. Playboy Enters., Inc., 564 F. Supp. 1151, 1153 (N.D. Cal. 1983) (noting "Constitutional significance" of requirement), aff'd, 732 F.2d 163 (9th Cir.), cert. denied, 469 U.S. 853 (1984).

This Court has held that a claim of product disparagement is "subject to the same first amendment requirements that govern actions for defamation." Unelko Corp. v. Rooney, 912 F.2d 1049, 1058 (9th Cir. 1990), cert. denied, 499 U.S. 961 (1991); see also Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) (applying First Amendment's "actual malice" requirement to product disparagement claim). The Supreme Court has stated in equally emphatic terms that a defamation claim prohibited by the First Amendment cannot, under any label, "form the basis for the award of damages." Hustler Magazine v. Falwell, 485 U.S. 46, 57 (1988). Thus it is immaterial under the First Amendment whether the statement at issue relates to the plaintiff or merely to his or her property. Blatty, 42 Cal. 3d at 1043, 728 P.2d at 1183, 232 Cal. Rptr. at 548.

B. Appellants Have Not Shown That the Broadcast Was "Of and Concerning" Them or Their Specific Products.

The cases uniformly hold that where, as here, individuals are discussed only in general terms as part of a large group, class, or industry, they have no claim for defamation or disparagement unless they can show that they were somehow singled out or identified with specificity. For example, in Sims v. KIRO, the owner of a retail store called the "Bicentennial Shop" sued a television station for broadcasting harsh criticisms of merchandisers who were capitalizing on the commercialization of the nation's anniversary. Affirming dismissal of the suit, the Washington Court of Appeals agreed with the trial court that the comments made by the defendant "did not specifically single out the plaintiff or particularly refer to him out of all those engaged in selling bicentennial souvenirs." 20 Wn. App. at 236, 580 P.2d at 646.

Similarly, in Michigan United Conservation Clubs v. CBS News, 485 F. Supp. 893, 900 (W.D. Mich. 1980), aff'd, 665 F.2d 110 (6th Cir. 1981), a group of Michigan hunters sued CBS for broadcasting a report that contained graphic and brutal hunting footage. Noting that plaintiffs belonged to a group of over one million individuals, the court held:

As a matter of law, the defamation of a group this large can have no personal application to individual members, thus the only way a group member can maintain suit is if the circumstances surrounding publication give rise to the conclusion that the member was being focused upon. Restatement (Second) of Torts  564A. Plaintiffs have not shown such circumstances . . . .

485 F. Supp. at 899.

The same principle was followed by the court in Weatherhead v. Globe Int'l, 832 F.2d 1226 (10th Cir. 1987), when it dismissed a class action brought by 955 dog breeders against a newspaper that published an article alleging that breeders raise puppies under inhumane conditions. The court found that the "group of 955 was too large to afford relief and could not be denominated in a smaller subset," because the smaller group could not be identified by the text of the article. Id. at 1228-29; see also Schuster v. U.S. News & World Rep., 459 F. Supp. 973, 978 (D. Minn. 1978) ("The size of the class [over 1,000] is too large and its geographical distribution too wide to permit actions for libel by individual class members when the allegedly libelous statements speak only in general terms about the class."), aff'd, 602 F.2d 850 (8th Cir. 1979). Lower courts faced with similar claims have consistently reached the same result.

Appellants admitted below that no member of a putative class of "approximately 4,700" red apple growers in the State of Washington was identified, referred to, or pictured in the broadcast. Auvil I, 800 F. Supp. at 933. There was no mention or depiction of the State of Washington, nor of Washington apples or Washington apple growers, individually or collectively. The district court's error of law is manifest in its conclusion that appellants' claims survived even though the broadcast "was `of and concerning' all apples . . . ." Id. at 935 (emphasis added). Incredibly, the court stated that growers were not referenced "except in the most tangential sense," id. at 933, and in the same breath held that "[t]o the extent that identification of growers is relevant at all, every apple grower in the country was identified." Id. (emphasis added). While the precise contours of the "of and concerning" doctrine cannot be delineated in the abstract, it is clear that a class of products consisting of "all apples" or a class of individuals consisting of "every apple grower in the country" is too large to satisfy the "of and concerning" requirement. See Restatement (Second) of Torts,  564A (comment b) (cases allowing recovery "usually have involved numbers of 25 or fewer"). Under Washington law, appellants had to show with "convincing clarity" that the broadcast was "of and concerning" them. Mark v. Seattle Times, 96 Wn.2d 473, 487, 635 P.2d 1081, 1089 (1981) (plaintiff must prove each element of defamation claim with "convincing clarity"), cert. denied, 457 U.S. 1124 (1982); Sims, 20 Wn. App. at 237, 580 P.2d at 647 (affirming summary judgment where plaintiff did not have "convincingly clear proof" on "of and concerning" element); cf. Golden North Airways v. Tanana Pub. Co., 218 F.2d 612, 621-22 (9th Cir. 1954) (every defamation case requires a showing of "certainty as to the person defamed"). Appellants failed under any standard of proof.

The district court committed serious constitutional error when it disregarded all case precedents, including controlling authority in the Unelko and Sullivan cases, and refused to apply fundamental "of and concerning" principles to appellants' disparagement claims. Ironically, the court held that every apple grower in the country has standing to bring an action to vindicate the reputation of apple products even though it also found that the same growers would be barred by the First Amendment from vindicating any alleged harm to their personal reputations from the same alleged falsehoods.

In addition, the district court never considered that cutting disparagement claims loose from the mooring of the "of and concerning" requirement provides a cause of action not just to apple growers but to every member of the apple industry and of other, related industries. Producers and retailers of apple juice, apple sauce, apple pie, and apple candy stand in the same position as appellants in this case. The entire banana industry is similarly situated because the broadcast specifically mentioned the FDA's failure to test bananas for the presence of the dangerous chemical benomyl.

The "of and concerning" requirement "limits the right of action for injurious falsehood, granting it to those who are the direct object of criticism and denying it to those who merely complain of nonspecific statements that they believe cause them some harm." Blatty, 42 Cal. 3d at 1044, 728 P.2d at 1183, 232 Cal. Rptr. at 548. The district court allowed the growers' allegations of harm to blind it to the "unjustified threat to society" posed by group libel lawsuits on a large scale. Id. The abandonment of the "of and concerning" requirement set the parties to this lawsuit adrift on a time-consuming and expensive odyssey of litigation in an attempt to determine the truth or falsity of statements about cancer risk ultimately held to be unverifiable. In spite of ongoing damage to First Amendment values, the parties' endless debate over the causes of cancer continues in front of this Court, despite the fact that appellants were never mentioned in the CBS broadcast. See Dorsey v. National Enquirer, 973 F.2d 1431, 1435 (9th Cir. 1992) (cases implicating First Amendment rights "should be disposed of at the earliest possible stage of the proceedings if the facts as alleged are insufficient as a matter of law to support a judgment for the plaintiff").

The district court made an error of constitutional magnitude when it grafted an unprincipled "all apples" exception onto the First Amendment's "of and concerning" requirement. The district court's departure in a published opinion from established precedent invites "any number of vexatious lawsuits and seriously interfere with public discussion of issues, or groups, which are in the public eye." Michigan United, 485 F. Supp. at 900. Such suits, available under the decision below to a virtually unlimited class of plaintiffs, will be especially damaging to the media and are sure to result in the public receiving less information about pressing topics of widespread concern, because they will "chill heated public debate into lukewarm pap." Schuster, 459 F. Supp. at 978.

II. THE DISTRICT COURT PROPERLY GRANTED SUMMARY JUDGMENT ON THE ISSUE OF FALSITY

A. Appellants Had to Show by Clear and Convincing Evidence That the Central Message of the Broadcast Was Verifiably False.

The Constitution requires that appellants, who are seeking damages from a media defendant for speech on a matter of public concern, bear the burden of proving falsity with conclusive evidence. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77 (1986). In deciding whether appellants met their burden, the district court properly examined the broadcast as a whole to determine whether appellants presented sufficient evidence to raise an issue of fact as to falsity. Under Washington law, plaintiffs cannot prevail merely by pointing to minor inaccuracies that do not alter the "gist or substance of the report when considered as a whole." Herron v. KING Broadcasting Co., 112 Wn.2d 762, 769, 776 P.2d 98, 102 (1989); see also Mark, 96 Wn.2d at 493, 635 P.2d at 1092 (defamation law demands an inquiry into substantial truth). As the Washington Supreme Court explained in Herron, even an allegedly false statement "affects the ‘sting’ of a report only when ‘significantly greater opprobrium’ results." 112 Wn.2d at 769, 776 P.2d at 102.

B. Appellants Cannot Meet Their Burden Because the Gist of the Broadcast Is Unverifiable.

In Hepps, the Supreme Court recognized that the allocation of burdens will be dispositive where the truth or falsity of a statement is unknowable. The Court recognized that this rule will "insulate from liability some speech that is false, but unprovably so." 475 U.S. at 788. The Hepps rule was reaffirmed in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), which identified Hepps as standing "for the proposition that a statement on matters of public concern must be provable as false before there can be liability under state defamation law, at least in situations, like the present, where a media defendant is involved." 497 U.S. at 19-20; see also Ollman v. Evans, 750 F.2d 970, 981-82 (D.C. Cir. 1984) ("[a]n obvious potential for quashing or muting First Amendment activity looms large when juries attempt to assess the truth of a statement that admits of no method of verification"), cert. denied, 471 U.S. 1127 (1985).

Appellants incorrectly suggest that the district court was required to accept the extreme reformulation of the broadcast's message crafted by their "communications experts." Appellants' Br. at 5-10, 12, 16, 22-26. The defamatory meaning of a broadcast or publication in the first instance, however, is a question of law for the Court. Hoppe v. Hearst Corp., 53 Wn. App. 668, 672, 770 P.2d 203, 206 (1989); see also Waring v. William Morrow Co., Inc., 821 F. Supp. 1188, 1190 (S.D. Tex. 1993) ("Where, as here, the underlying facts are undisputed, any variance regarding minor items can be disregarded and substantial truth can be determined as a matter of law."). Appellants' attempt to torture a false "message" out of the broadcast by combining statements taken out of context with vague innuendo is ridiculous on its face. Ambiguities are not to be resolved in favor of a defamatory or disparaging meaning. Lee v. The Columbian, Inc., 64 Wn. App. 534, 538, 826 P.2d 217, 220 (1991). Thus the district court properly disregarded appellants' caricature of the broadcast and construed the broadcast's message as a matter a law. Auvil III, 836 F. Supp. at 742; see Camer v. Seattle Post-Intelligencer, 45 Wn. App. 29, 38, 723 P.2d 1195, 1201 (1986) (issue is what "average reader . . . could reasonably conclude"), rev. denied, 107 Wn.2d 1020, cert. denied, 482 U.S. 916 (1987). Reliance on expert testimony to the contrary is wholly inappropriate.

For analytical purposes, the district court divided the central message into three component parts: (1) daminozide is the most potent cancer-causing agent in the food supply; (2) daminozide poses an imminent hazard and an unacceptable risk; and (3) daminozide is most harmful to children. Auvil III, 836 F. Supp. at 742. Faced with overwhelming EPA evidence of cancer risk, appellants could not prove that consuming Alar-treated products was safe and would not create an imminent, unacceptable risk of contracting cancer. As a result, they were unable to show that the broadcast was false. As the court stated in Spelson v. CBS, Inc., 581 F. Supp. 1195, 1202 (N.D. Ill. 1984), aff'd without op., 757 F.2d 1291 (7th Cir. 1985), much of the broadcast material is incapable of a defamatory construction simply because the underlying subject matter, medical science, is at best an inexact science in which numerous and widely varied approaches and philosophies exist.

Given the uncertainty inherent in cancer risk assessment and the fact that predictions can vary by orders of magnitude, it is not surprising that there is disagreement in the scientific community concerning the exact magnitude of the danger presented by Alar. Appellants may honestly believe that animal data are meaningless, that the danger posed by Alar was virtually nonexistent, and that openly discussing cancer risks will bring the nation's economy to a grinding halt. Their subjective beliefs, however, are not sufficient to raise a factual issue as to falsity. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (Rule 56 requires "specific facts" in order to defeat summary judgment motion).

Indeed, despite appellants' repeated criticisms (see, e.g., Appellants' Br. at 19-21) of reliance on the results of long-term animal bioassays, such data are accepted as valid predictors of human health risk by the EPA, the World Health Organization's International Agency for Research on Cancer ("IARC"), the NAS, numerous "peer-reviewed" scientific publications, and many other American scientists, as well as the United States courts and the United States Congress. Using animal data to predict human cancers is also practically and ethically necessary.

The district court's conclusion must be affirmed, however, not merely because CBS' experts are "right" (or in the scientific mainstream) and appellants' are "wrong" (or on the scientific fringe), but because appellants did not rebut with facts CBS' evidence of Alar's dangerous cancer risks, and because, ultimately, the scientific predictions that accompanied the report on those risks are not verifiable.

C. Evidence of Scientific Debate Does Not Raise an Issue of Fact.

The First Amendment prohibits labeling the broadcast "false" merely because appellants feel it did not present an optimistic enough view of cancer risks from Alar. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258 (1974) (media's "choice of material . . . and treatment of public issues and public officials --whether fair or unfair --constitute the exercise of editorial control and judgment"). Appellants' attempt to subject pessimistic risk assessments to civil liability is based on the unconstitutional premise that the burden of proof rests on a speaker who predicts danger rather than safety. See Hepps, 475 U.S. at 777 (presumption of falsity "cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern"). Under Hepps, Milkovich, and Mark, the broadcast cannot be actionable where the gist is not provably false. In a case like this, where neither side's predictions can be verified, "speech must seek its own refutation without intervention by the courts." Koch v. Goldway, 817 F.2d 507, 510 (9th Cir. 1987).

Extrapolating from animal testing to establish carcinogenicity in humans requires "a policy judgment rather than a purely factual determination." Synthetic Organic Chem. Mfrs. Ass'n v. Brennan, 506 F.2d 385, 390 (3d Cir. 1974), cert. denied, 420 U.S. 973 (1975). It is not surprising, therefore, that appellants could not prove that Alar posed no risk or even a negligible risk -- or even that the risk was less than that suggested by NRDC in the broadcast. Nor does appellants' strategy of debating what they perceive as weaknesses in the underlying studies (Appellants' Br. at 19-21) raise an issue of fact on summary judgment. Appellants' protests to the contrary notwithstanding, the district court did not improperly weigh the evidence -- it properly held that the statements concerning cancer risks were incapable of being proved false. Auvil III, 836 F. Supp. at 743. Appellants are free to criticize the overwhelming scientific evidence that indicates Alar will cause cancer in humans. CBS and others, however, must be equally free to rely on that evidence and republish discussions concerning it, so that consumers -- not juries -- can resolve competing views about cancer risks to which they are exposed.

D. Individual Components of the Broadcast's Message Are Substantially True.

A statement that is substantially true -- even if technically in error -- cannot support liability for defamation under Washington law. Mark, 96 Wn.2d at 496, 635 P.2d at 1093; see also Herron, 112 Wn.2d at 769, 776 P.2d at 102 (same)./ The same principles apply to this disparagement action. Auvil I, 800 F. Supp. at 937 n.7; see Dairy Stores, Inc. v. Sentinel Pub. Co., 104 N.J. 125, 516 A.2d 220, 226 (1986).

Appellants claim that a statement in the broadcast calling Alar the "most potent cancer-causing chemical in our food supply" was false because at least one naturally-occurring chemical (aflatoxin) might have a higher toxicological potency number than UDMH. Intolerable Risk and the broadcast, however, discussed pesticides sprayed on food and the EPA's regulation of synthetic pesticides -- not naturally occurring chemicals. Even if UDMH was not the most potent carcinogen in existence, it made Alar one of the most potent carcinogens added to the food supply. Under Mark, the distinction appellants rely on did not affect the broadcast's sting.

Appellants also claim that whether Alar was "more harmful to children" was improperly resolved on a motion for summary judgment. Appellants' Br. at 28-29. The issue of childhood risk, however, boiled down to an issue of consumption about which there was absolutely no dispute of material fact, because "differences in diet and thus in dietary exposure to pesticide residues account for most of the differences in pesticide-related health risks that were found to exist between children and adults."/ NRC, Pesticides, at 4; see also id. at 169-70, 172, 183, and at 351 ("1-year-old children consume more than 30 times as much apple juice per day as adults").

Finally, the CBS broadcast included a statement by Janet Hathaway critical of government inaction./ References in the broadcast to the "imminence" of the hazard were specifically aimed at the federal statutory framework. In addition, the hazard was immediate because exposure to Alar was constantly occurring and would continue until it was removed from the food supply. Auvil III, 836 F. Supp. at 742-43 ("Because of the usually long laten[cy] period of cancer, ingesting a carcinogen at any time could create an imminent hazard of incurring cancer in the future.").

Threatening CBS with massive liability -- on a jury finding of falsity -- for reporting competing views in a vigorous policy debate over cancer risks is an insult to free speech. The district court rightly accorded the broadcast full constitutional protection. Pierce v. Capital Cities Comm'ns, Inc., 576 F.2d 495, 500 (3d Cir.), cert. denied, 439 U.S. 861 (1978).

CONCLUSION

There is no evidence that the broadcast in question was "of and concerning" appellants. For that reason, and because appellants failed to raise an issue of fact regarding falsity, this Court must affirm the judgment below.

DATED this 30th day of March, 1994.

DAVIS WRIGHT TREMAINE
Douglas P. Jacobs Attorneys for Appellee CBS Inc.
Susanna M. Lowy
Anthony M. Bongiorno
CBS Inc. By
51 W. 52nd Street Bruce E. H. Johnson
New York, NY 10019 P. Cameron DeVore
(212) 975-3456 Christopher Pesce
Attorneys for Appellee CBS Inc. William C. Komaroff

STATEMENT OF RELATED CASES UNDER CIR. RULE 28-2.6

Appellee CBS Inc. knows of no related cases that are pending in this Court.