Win or Lose, Dissing Food Can be Costly
Ronald K.L. Collins & Jonathan Bloom

Ronald Collins is the director of the FoodSpeak Project at the Center for Science in the Public Interest. Jonathan Bloom is an associate at the New York law firm of Weil, Gotshal & Manges L.L.P. They collaborated on an amicus brief presented to the Court of Appeals for the Fifth Circuit in support of Oprah Winfrey. This op-ed. is reprinted with permission from the March 8, 1999 (A-21) edition of the National Law Journal. Copyright 1999, The New York Law Publishing Company. All rights reserved.

Contrary to popular belief, the Oprah Winfrey case is not over. It is very much alive — and that is precisely the problem.

To many onlookers, the trial may have seemed a media event, blown out of proportion because of its well-known defendant. Besides which, the defendants won. But some have been doggedly urging people to take the matter seriously as a continuing threat to the First Amendment [see e.g., Podium, NLJ, 6-22-98] — and the reason is becoming clear.

In 1996, Texas cattle ranchers sued Oprah Winfrey for airing on her TV show allegedly disparaging statements about cattle. The lawsuit arose out of remarks made by Howard Lyman of the Humane Society concerning a possible link between “mad cow disease” in cattle and a fatal degenerative brain disease in humans. The cattlemen claimed that Lyman’s comments, as edited for broadcast, falsely impugned the safety of American beef.

A year ago, the cattlemen lost their case against Winfrey and her co-defendants Lyman and Harpo Productions, Inc. Federal District Judge Mary Lou Robinson ruled that the defendants could not be held liable under Texas’ food disparagement law (Tex. Civ. Prac. & Rem. Code 96.002) because cattle are not a “perishable food product” under the statute. The jury also rejected the plaintiffs’ common law business disparagement claim. Texas Beef Group, et al. v. Oprah Winfrey, et al., 11 F. Supp. 2d 858 (N.D. Tex. 1998).

That seemed to be the end of the matter — a First Amendment victory. Not yet, for the cattlemen appealed their case to the U.S. Court of Appeals for the Fifth Circuit, where the matter is pending. More time, more litigation, more money. Food disparagement laws, like the ones in Texas and in 12 other states, encourage just such protracted litigation.

Thus far, it has taken thirty-plus months of litigation, seventy-five volumes of court records, 5,666 pages of testimony, and millions of dollars in attorneys’ fees, largely to defend against the claim that live cattle are covered by the Texas statute. Never mind that the statute itself is clearly unconstitutional (an issue that has yet to be reached). Just construing the phrase “perishable food product” has proven to be an enormously expensive exercise. The cattle ranchers also sued Oprah in a separate state court action, which now has been removed to a federal district court.

Swallow Those Thoughts

Food disparagement statutes invite aberrant litigation. Case in point: Emu ranchers in Texas charged that their fowl was an agricultural product that was disparaged by a tongue-in-cheek Honda TV commercial — “Emus, Joe. It’s the pork of the future.” (Burleson Enterprises, Inc. v. American Honda Motor Co., Inc. (U.S. Dist. Ct. N.D. Tex., #2-97-CV-398, 1998)). The emu ranchers’ $75,000 lawsuit was ultimately dropped, but it took several months, even after the Oprah verdict, to dispose of the case. Consider also the case of Agricultural General Co. v. Ohio Public Interest Group & Amy Simpson (Ct. of Common Pleas, Franklin Co., OH, #97CVC07-7367, July 31, 1997). There, a public interest group and its director endured a year’s worth of anxiety in a food disparagement lawsuit — this, for making true statements about back-dated eggs.

Those and other cases illustrate how easy it is to embroil someone in costly and time-consuming litigation, typically without any possibility for successful defendants to recover attorneys’ fees. How readily, then, will organizations publish hard-hitting stories that provide information Americans need in order to make informed decisions? The newly released report in the March issue of Consumer Reports, which points to high pesticide levels in certain fruits and vegetables, is both a heroic gesture as well as a source of information.

Free speech is subverted by lawsuits seeking to protect economic interests at the expense of frank public discussion concerning serious public health issues. While no statutory food disparagement claim has yet prevailed in court, lawsuits like those noted above suggest how chilling even the threat of such an action can be. For few can afford to speak out about food and food safety if they will be slapped with a court summons. Little wonder, then, that legislation has just been introduced in Texas by Rep. Ruth Jones McClendon (D-San Antonio) to repeal the state food disparagement statute.

Aggrieved agricultural producers do not need special statutory protection against false and damaging speech concerning their products. The common law provides adequate means for redress in appropriate circumstances for knowing or reckless false statements, assuming the speech is sufficiently targeted to satisfy the constitutional “of and concerning” requirement.

Bottom line: the First Amendment and the public interest are best served by the repeal of food disparagement statutes.

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