Arkansas House passes food-libel bill

Wednesday, March 10, 1999

Free-speech advocates say a food-libel bill that passed the Arkansas House this week stands as one of the worst attempts nationwide to penalize individuals and groups who make disparaging comments about agricultural products.

But opponents to HB 1938 admit that killing the bill will be difficult.

“We've got a bead on it, but we're going to have a tough fight,” said Dennis Schick, director of the Arkansas Press Association. “This has generated some momentum, and we're nearing the end of the session when there's a lot of pressure to move bills along.”

Schick and others worry the bill would create a lower threshold than the libel test the U.S. Supreme Court created in New York Times v. Sullivan.

In that 1964 decision, the court said public officials could not recover damages for a defamatory falsehood unless they proved the statement was made with actual malice. The court defined actual malice as “with knowledge that it was false or with reckless disregard of whether it was false or not.”

The Arkansas bill, if passed in the Senate and signed by Gov. Mike Huckabee, would prohibit the “willful or negligent dissemination” to the public of false information that a perishable agricultural food is unsafe for human consumption. The bill defines “false information” as information not based on reliable, scientific facts and which the disseminator knows or should have known to be false.

“That's contrary to Times v. Sullivan because it allows for mere negligence,” said Ron Collins of the Center for Science in the Public Interest and a spokesman for the FoodSpeak coalition. “In other words, the law is triggered by a low threshold of culpability.”

Collins said that the bill also would allow agricultural producers to seek punitive damages even against those individuals who unknowingly made false comments about a food product.

Both the bill's House sponsor, Jim Milum, R-Harrison, and its Senate sponsor, James Scott, D-Warren, failed to return repeated calls.

In an interview with the Arkansas Democrat-Gazette, Milum said the bill was needed to “protect agriculture producers from people that may want to willfully harm their product, to cause problems that are not true.”

A wave of food-libel laws swept the nation after a federal district court in 1990 dismissed a libel lawsuit brought by a group of Washington apple growers against CBS. The apple farmers contended comments made on “60 Minutes” about the harmful effects of the growth enhancer Alar unfairly disparaged their industry.

Today, food-libel laws are on the books in 13 states — Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota and Texas.

Easily the most visible case of recent years centered on a lawsuit filed by Texas cattlemen against talk-show host Oprah Winfrey. But other recent lawsuits have challenged comments about sod, eggs and emus.

Sponsors of this latest bill, however, say their measure grew out of recent false reports about the level of dioxin in Arkansas catfish. They defend the bill, in part, by saying that the proposed legislation exempts information published in newspapers or broadcast on the radio or television.

But Collins says the bill remains problematic because it doesn't exempt comments in newsletters, on the Internet or on billboards. Even though reporters might be free to cover a news conference on food products, the speaker of the conference still could be held liable. The subsequent news reports might then be used as evidence against the speaker.

“Clearly, this law is an attempt to single out agriculturists and food activists and subject them to draconian liability,” Collins said.

He says the law clearly favors the agricultural industry because it allows plaintiffs to recover attorneys' fees but doesn't offer that relief to successful defendants.

“It's a one-way ratchet when it comes to attorney's fees,” Collins said. “It's contrary to fairness. If they win, they win. If they lose, they win. If they tie me up in court for a year and they lose, they don't have to pay my attorneys' fees.

“However one feels about food-disparagement laws, there should be some attorneys' fees for both sides,” he said. “That's clear evidence of the one-way direction of these laws.”