Book Publishing & Food Libel Laws

Ronald K.L. Collins

Ronald Collins is the director of the FoodSpeak Project at the Center for Science in the Public Interest. This op-ed. is reprinted with permission from the June 22, 1998 edition of the National Law JournalCopyright 1998, The New York Law Publishing Company. All rights reserved.

"The lawyer for [my publisher] at first had few problems with my book. Then she read the section on the agricultural disparagement laws and changed her mind. It was the first she had heard of them. . . . In the end only tiny, minor changes that were not vital to the book were called for."

"This dilemma had nothing to do with whether there was sufficient support for the materials -- there was," added the book’s author. "Rather, the concern was what might happen with these strange, threatening, intimidating laws if food producers failed to apply the same rational, careful thought to bringing litigation that I had applied to researching and writing my book."

Those are the words of a respected critic who currently writes on food policy. Though the book was ultimately published and well-received, the point remains: These kinds of libel laws chill to the bone; they are counter to everything central to freedom of expression and book publishing. How many publishers, especially smaller ones, are willing to take such chances even if every claim can be documented? After all, no business wants to get caught up in protracted and costly litigation.

"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." That is how District Judge Mary Lou Robinson characterized the matter in her Feb. 26, 1998 unpublished order in Texas Beef Group v. Oprah Winfrey (N.D. Tex, CV-208-J). Unfortunately, advancing this public interest is risky business for publishers.

"Food-disparagement laws place publishers and editors in jeopardy if what they publish, though true, is critical of an agricultural product," says Lloyd J. Jassin, legal counsel for the Publishers Marketing Association. "Such laws could well diminish the amount of information the public receives about food and food safety."

Bad Food Makes Bad Law

Today, the laws in 13 states work against the public interest in obtaining information about food and food safety. In those states a food critic may be held to legal account if he or she claims any "perishable food product or commodity" is unsafe for human consumption. Those laws punish protected expression by: establishing low standards for civil liability; allowing for punitive damages; awarding attorneys fees for plaintiffs alone; and by inviting abusive litigation practices. Colorado’s law is reminiscent of 18th-century libel law: It subjects a publisher to criminal prosecution for disparaging food.

The very notion that products can be defamed is contrary to of our First Amendment jurisprudence. It has long been a common law and constitutional law principle that, in order for an allegedly defamatory statement to give rise to a cause of action, any statement must be "of and concerning" a particular person or corporation. Absent that element, a claim is constitutionally deficient.

Furthermore, most of the food-disparagement laws require food critics to know of, and examine all, "reliable scientific facts and data" before making any statements. That scientific evidence standard discourages many from saying or publishing almost anything about food absent tomes of the latest scientific evidence, which is quite often ambiguous, financed by industry money, and is sometimes in the sole possession of the industry bringing the lawsuit. Given that situation, there is little a publisher can print that is inoffensive to industry.

Many product-disparagement laws place the burden of proof on the party being sued. If sued, a publisher must be ready to assume the burden of demonstrating that every published statement comports with current scientific evidence. Such burden-of-proof requirements penalize those who speak out because what is stated is presumed false unless scientifically proven otherwise. Unquestionably, this is an undue burden on freedom of expression.

Book publishers risk civil or criminal liability if, for example, they print books concerning environmental and carcinogenic assessments of food and food production, bacteria in meat and poultry, food dyes, polluted fish, pesticide-treated produce, etcetera. Of course, that mocks the high purpose of the First Amendment. Publishers and authors need a vigorous measure of editorial freedom if the truth is ever to emerge in the marketplace of ideas.

Large Area of Impact

Food-disparagement laws, while adopted in only 13 states, have a national impact. Book publishers sell their product nationally, so those regional laws determine their editorial standards. "Typically, libel lawyers for publishers and others tend to err on the side of avoiding any potential litigation. The more that happens, the more free speech suffers," says Bruce E.H. Johnson, a noted libel law expert and the attorney who successfully represented CBS in Auvil v. CBS "60 Minutes," 67 F.3d 816 (9th Cir., 1995), which panicked industry to push for state food-disparagement laws.

The fear that leads to self-censorship is what food-disparagement laws are all about. It is a fear heightened by the Oprah lawsuit, the $10.3 million-plus action filed against Ms. Winfrey and Howard Lyman for "libeling" beef. According to Steve Kupperud, an executive for the American Feed Industry Association (one of the groups that led the campaign to enact such laws): "I think that to the degree that the mere presence of these laws has caused activists to think twice, then these laws have already accomplished what they set out to do."

The "mere presence" of such laws can expose a publisher to costly litigation, regardless of the truth of the statements published. Consider: the first Oprah case (there is now a second action in state court in addition to the federal case which is on appeal) cost nearly a million dollars to defend at the trial level alone. This is the cost of winning!

For all the attention devoted to Oprah and the cattlemen, few people have fully appreciated the real impact such laws have on the publishing industry. In a nutshell, food-disparagement laws are a bad idea -- bad for publishers, bad for authors, and bad for the public and its right to know as much as it can about the food it eats.

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March 19, 1998