Coalition readies for fight over food-libel laws

Thursday, April 30, 1998

WASHINGTON — So-called “veggie-libel” laws — one of which landed talk-show host Oprah
Winfrey in court earlier this year — are the target of a new First Amendment
campaign announced Wednesday.


An alliance of 26 consumer, civil liberties and journalism organizations
calling itself the “Foodspeak Coalition” announced plans to campaign for repeal
of veggie-libel laws and to challenge the laws in court.


These food-disparagement laws, in effect in 13 states, allow farmers and
agribusiness companies to seek damages from people or groups who make false or
disparaging comments about certain food products.


The goal of the coalition, ultimately, is to bring a challenge to the laws
before the Supreme Court where, many legal experts believe, the laws would be
found unconstitutional. The coalition has a web site, detailing the laws in each
state and other information. (http://www.cspinet.org/foodspeak)


“Today, the Foodspeak project begins a campaign to take back the First
Amendment,” said Michael Jacobson of the Center for Science in the Public
Interest, one of the organizers of the effort. “The public's right to know is
rendered meaningless when consumer groups fear to speak and the press fears to
report what they say.”


Jacobson's group is just the kind of organization that could be sued under
the laws, he said, because of its frequent reports highlighting health problems
associated with foods ranging from Chinese takeout to fettuccine alfredo.


Among other groups in the coalition: the Society of Professional Journalists,
People for the American Way, the Electronic Frontier Foundation, the National
Coalition Against Censorship, the Humane Society of the U.S., and the Center for
Media & Democracy.


The groups won support from Sen. Patrick Leahy, D-Vt., who has raised
concerns himself about agricultural products. “Defamation laws should not
intimidate citizens and the press who want to speak out about food safety,” said
Leahy.


Also leading the effort is consumer advocate Ralph Nader, who said the laws
are aimed at protecting powerful agribusiness interests by sending “a chilling
message to millions of people that they better keep their opinions to
themselves.”


Several speakers at a news conference announcing the coalition said suits
filed under the food-libel laws often fail—an example of which is a suit
dismissed this week by a Texas judge, brought by a turf farmer against an
agricultural extension agent who criticized her sod in a newspaper column. But
defending the lawsuits, coalition members said, is costly.


“Losing a libel lawsuit is not the price of criticism, defending a libel
lawsuit is the price,” said Ira Glasser of the American Civil Liberties Union.
“And for people without the resources of Oprah, the price is prohibitive.”
Internet sites that communicate about food-safety issues would be especially
vulnerable, speakers noted.


A federal court jury in Amarillo, Texas, cleared Winfrey in February of
charges brought by the Texas beef industry for remarks she made on her program
about mad cow disease. The ranchers are appealing the federal verdict and have
sued her again, this time in state court.


Also at the news conference was Amy Simpson of the Ohio Public Interest
Group, who has been sued by Buckeye Eggs for her group's reports on the
re-packaging and re-dating of old eggs. Since the suit was filed a year ago, she
said she has been overwhelmed with pre-trial discovery questions and paperwork
by the egg company's law firm Jones, Day Reavis & Pogue.


“While I am confident that we will ultimately prevail in the courts, the
process of defending oneself is hellish,” Simpson said. “The lawsuit has been an
Orwellian nightmare where old eggs are new and the truth is libelous.”


Under long-standing common law principles, businesses have been allowed to
sue other businesses, usually competitors, for defaming their products. But
those laws proved inadequate, industry officials say, when the consumer movement
and the media began to target products more aggressively.


The first effort to pass special laws to protect agricultural products came
after a 1989 report on CBS News' “60 Minutes” about the use of Alar as a
preservative by apple growers. The industry claimed sales dropped sharply.


“We need more of these laws, not fewer,” said Steve Kopperud of the American
Feed Industry Association, one of the early advocates of the food disparagement
laws. “Producers are fed up.”


He said consumer groups seeking publicity have the upper hand when they make
inflammatory claims about a food product. The veggie libel laws, according to
Kopperud, are meant to give producers some legal recourse — not to stifle
criticism. The laws do not allow suits against the news media, he asserts, but
do permit them against groups that make claims that they know to be false — or
should know are false.


The Foodspeak group plans to contact governors and legislators to urge
repeal, as well as to discourage any new legislation in other states. The group
will also offer legal help to those sued under the laws, with an eye toward a
constitutional challenge.


Rodney Smolla, law professor at the College of William & Mary, said the
laws were “undoubtedly unconstitutional” and vulnerable to attack under libel
precedents. Many of the laws, he said, blur the distinction between opinion and
fact, and permit liability to be found far more easily than Supreme Court
doctrine would allow.


“The products of agricultural goods are no more entitled to exemption from
the rough and tumble of public debate about their products than they would be
entitled to an exemption from the fierce competition within the economic
marketplace in which they sell those products,” Smolla said.


Along with Texas, other states with veggie-libel laws are Alabama, Arizona,
Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio,
Oklahoma and South Dakota.