Anticipated challenge to veggie-libel law cracks as Ohio egg company drops suit

Wednesday, July 8, 1998

Buckeye Egg Farm's decision to drop its libel lawsuit against the Ohio Public Interest Research Group and its director is welcome news but disappointing, says the group's attorney.

First Amendment attorney David Marburger said that the egg producer's announcement on Monday “was primarily good because PIRG and director Amy Simpson's interests are paramount, but it's also disappointing because we were poised to persuade the judge to declare the state's food-disparagement law unconstitutional.”

In 1996, Ohio passed a food-disparagement—or veggie-libel—statute allowing farmers to sue people for unfair criticism of their products. Thirteen states have passed such laws in order to give agriculturists a chance to fight back against negative publicity about their products. Marburger calls the law “overkill, an over-reactive statute that has a lot of constitutional infirmities.”

The Croton, Ohio, egg producer sued Simpson and PIRG under that law in March 1997 after being accused of re-packaging and re-dating old eggs. The statement which most upset Buckeye—”We have no idea how many, if any, have been made ill from these eggs”—was made by Simpson during a news conference announcing PIRG's filing of a consumer action suit against the company. That suit over whether Buckeye's egg expiration dates are reliable or deceptive has yet to go to trial.

Buckeye's case against PIRG and Simpson would have been the first test of the law. However, an attorney for the company filed a one-page motion last week in Franklin County Common Pleas Court in Columbus, saying the company had concluded it was not worth the effort to pursue the lawsuit.

According to Marburger, the Buckeye case received a great deal of attention as a result of Texas beef ranchers' veggie-libel lawsuit against talk show host Oprah Winfrey.

In that state lawsuit, the judge ruled that Texas' food-libel statute did not apply; she did not rule on the constitutionality of such laws. “We thought our case would have been the first” to test veggie-libel laws' constitutionality, Marburger said.

Ronald K.L. Collins, director of the Foodspeak Coalition, said that the Buckeye situation “makes the Oprah case pale in comparison.”

“It's hard to imagine a case more egregious than this one,” Collins said. “Neither PIRG nor Simpson were in a position to litigate the case. They don't have the funds that Oprah does.”

The Foodspeak Coalition is an alliance of 32 consumer, civil liberties and journalism organizations that formed in April to campaign for repeal of food disparagement laws.

“We believe that Simpson's statements are what the First Amendment is all about,” Collins said. “These are statements about an important interest: food safety.

“If the citizen critic who's concerned about food safety has to be worried that a big company represented by a big law firm is going to come after [him or her], that intimidates citizens to the point where they self-censor,” Collins said.

In May, Foodspeak wrote a letter asking Buckeye to dismiss their suit against PIRG and Simpson. Now that the company has done so, Collins admits to feeling a little disappointed.

“We would have liked to test the constitutionality of this law,” he said. “This is the best libel case since New York Times v. Sullivan. It's a matter very much in public interest. It goes right to the heart of the First Amendment.”

Collins added: “In all of these states where [food-libel] laws exist, anyone can become an Amy Simpson.”

Buckeye's attorney, Todd S. Swatsler, has not returned phone calls.