In 1964, in New York Times v. Sullivan, the United States Supreme Court held that the First Amendment protects individuals who make defamatory statements related to matters of public concern, so long as such statements are not made with actual malicious or in reckless disregard of the truth. The Court reached this decision “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” (1) Their decision set the precedent for a heightened burden of proof in defamation cases that involve matters of public concern.(2)
But nearly forty years later, at the urging of major meat, dairy, and agricultural lobbyists, states have began adopting “food disparagement laws,” designed to make it easier for food producers to hold individuals liable for criticizing their products. Thirteen states (Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota, and Texas) have adopted some form of these disparagement laws. Although they all differ slightly, these laws all lower the actual malice and falsity standard set out in New York Times Co. v. Sullivan. They also allow the food business plaintiff to collect punitive damages and attorney’s fees against the defendant, in addition to any economic damages that stem from the defendant’s statements.
These food disparagement laws have come to be known as “veggie libel laws” because they have often been used against animal rights and vegetarian activists working to expose the harmful consequences of meat consumption. Celebrated talk show hostess Oprah Winfrey became a victim of a veggie libel suit when the Texas Beef Group sued her and former cattle rancher turned critic Howard Lyman, for doing a show on the dangers of Mad Cow Disease. As the Oprah case revealed, these laws chill the public’s right to engage in free speech by subjecting anyone wishing to speak out about food-product related issues (such as health risks, ethical implications, environmental impacts, etc.) to civil damages and legal costs. Imagine if such obstacles existed when Upton Sinclair was exposing the safety and health risks of slaughterhouses, or others were questioning the safety of using cocaine in Coca-Cola.
Food disparagement laws completely contradict the Supreme Court’s wisdom that the public should be allowed to participate, without fear of reprisal, in debates about matters of social and political concern, even if they are controversial or potentially defamatory. As the judge who threw out the case against Oprah Winfrey stated, “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.” (3)
Origins of the Laws
In February of 1989, CBS aired a 60 Minutes episode entitled “‘A’ is for Apple.” (4) The episode derived from a report by the Natural Resources Defense Council (NRDC) that exposed the dangers of a chemical sprayed on apples, Daminozide, or “Alar” as it is commonly known, to regulate and enhance their growth and color. The 60 Minutes episode focused on the NRDC’s findings that Alar is a dangerous carcinogen, capable of exposing millions of apple-eating children to cancer risk later in life.(5) The report indicated that children were especially at risk because they absorb and retain more of what they eat than adults per unit of body weight.(6) Millions of people watched the Alar episode, and a widespread panic ensued.(7) School Districts removed apples from school cafeterias, grocery stores pulled them from shelves, actress Meryl Streep testified to Congress on the dangers of Alar, and consequently, apple orchard growers lost millions of dollars.(8) The maker of Alar, Uniroyal Chemical Co., was forced to stop selling the chemical.(9) In 1989, the Environmental Protection Agency banned Alar because of “probable human carcinogens.”(10)
The impact on sales of apples following the Alar scare was catastrophic to the industry. In 1990, a group of Washington state apple growers filed a $250 million suit against CBS, alleging that the 60 Minutes program had falsely disparaged their products. The plaintiffs in the suit claimed that because the only tests that had shown Alar to be carcinogenic were performed on animals, it was false to warn of the carcinogenic effects of Alar on humans. However, the lower court found that because the growers were unable to prove the falsity of the defendants’ warnings about Alar, they could not maintain their lawsuit.(11) On appeal, the growers argued that although they were unable to prove the falsity of the statements, a jury could potentially find that the 60 Minutes episode contained a provably false message if the jury viewed the episode in its entirety.(12) The Court found this “false message” argument unpersuasive, and affirmed the lower court’s dismissal of the lawsuit.(13)
The apple industry was not forever tarnished, and sales of apples rebounded after Alar was removed from the market. However, the agricultural industry was scared: if just one television show could cause such devastating economic damage to the hitherto always-shiny apple, there was no telling what damage could be done to more controversial food products, like meat and dairy, under a similar spotlight. After the Auvil v. CBS 60 Minutes case, the food industry realized that existing libel laws, which placed the burden of proving falsity on the plaintiff, were insufficient to protect them from modern product disparagement.
Out of such concerns, in 1992 the American Feed Industry Association (AFIA), a lobbying group for the multi-billion dollar cattle-feed and pet-food industries, hired a Washington, D.C. law firm to draft model legislation to provide more protection for their economic interests.(14) When it was first unveiled to the U.S. Attorney General, he recommended major changes lest the law impinge on First Amendment rights.(15) However, 13 states (largely agricultural states with booming cattle industries) adopted forms of the model legislation on their own and despite federal warnings. The following three constitutionally suspect provisions are common to all of these states’ laws:(16)
- They eliminate and/or replace the actual malice / reckless disregard standard articulated in New York Times, Co. v. Sullivan with a weaker, negligence standard, meaning that the business need only prove the defendant was negligent in making false or disparaging statements.
- Further deviating from the Supreme Court standard, the laws provide that people can be sued not just for “false statements of fact” but for any “false information,” a much broader category which could include, for example, scientific hypotheses and opinions.
- The laws liberalize standing by eliminating the requirement that the alleged disparaging statement be “of and concerning” the business’ product. For example, if a person disparages beef as a whole, anyone involved in the beef industry could step forward as a potential plaintiff.
It was only a matter of time before someone would blunder into this trap. That someone was Oprah Winfrey.
Texas Beef Group v. Winfrey
Oprah Winfrey’s co-defendant, Howard Lyman, a whistle-blowing former cattle rancher, took advantage of his misfortune to raise further awareness, not just about the harmful effects of the meat industry, but about the damage food disparagement laws could do to basic free speech principles. He quipped that those who sued him “apparently believe that the First Amendment…was not meant to be interpreted so broadly as to allow people to say unpleasant things about beef.” And, “A funny thing can happen when you tell the truth in this country. You can get sued.”(17)
In 1996, a new strain of Transmissible Spongiform Encephalopathy known as Creutzfeldt-Jakob Disease (CJD) emerged in Britain.(18) CJD is an always-fatal degenerative brain disease that develops in humans after eating beef infected with Bovine Spongiform Encephalopathy, or Mad Cow Disease.(19) Scientists have discovered that Mad Cow Disease is likely to develop in cattle that are fed contaminated ruminant-derived protein supplements made from the rendered corpses of cattle and sheep.(20) Animals that die on farms before they can be slaughtered are sent to rendering plants to be transformed into cosmetics, lubricants, soaps, candles, and waxes.(21) The heavier protein and fecal material that can’t be used in these consumer goods gets pulverized into a brown powder that is used as an additive in almost all pet food along with livestock feed.(22) Most rendered animals died because they were diseased, e.g. from E. Coli bacteria and/or Mad Cow Disease.(23) Therefore, feeding cattle these protein supplements derived from the diseased ruminant animals spreads Mad Cow Disease even further.(24)
The link between CJD (the strain of Mad Cow Disease that is fatal to humans) and the consumption of beef caused a panic in Britain.(25) The news of this panic reached the United States, and several news outlets, including the New York Times, Newsweek, and The Wall Street Journal, ran stories about the dangers of Mad Cow Disease. This sparked the interest of The Oprah Winfrey Show.(26) On April 11, 1996, Oprah hosted a show entitled “Dangerous Foods,”(27) which led to the messy, expensive, protracted legal battle.(28)
The “Dangerous Food” episode featured former cattle-rancher turned vegetarian and animal rights advocate Howard Lyman, as well as a representative for the National Cattlemen’s Beef Association, a representative from the United States Department of Agriculture who was an expert on Mad Cow Disease, and a physician who was an expert on treating individuals affected with CJD in Britain.(29) In that sense, Winfrey gave many sides a turn. The show began with a segment discussing how Mad Cow Disease had killed people in Britain.(30) Winfrey assembled a panel of doctors and family members who knew people who had died from eating hamburger.(31) The second segment asked, “Can it Happen Here?” A panel of scientists, doctors, and people affiliated with the cattle industry considered whether Mad Cow Disease could kill people in the United States.(32) The doctors and scientists sought to dispel any concerns that Americans might be exposed to Mad Cow Disease, but Howard Lyman argued otherwise.(33) He vehemently maintained that the United States needed a mandatory ban on ruminant-to-ruminant-feeding, and he opined that the United States was at risk of an outbreak similar to England’s.(34) But more than Lyman’s remarks, it was Oprah Winfrey’s shocked reaction that sent waves of fear through the cattle industry: “Cows are herbivores,” she said. “They shouldn’t be eating other cows…It has just stopped me cold from eating another burger.”(35)
Immediately following the “Dangerous Foods” broadcast, sales in beef plummeted.(36) In the week before the show aired, finished cattle sold for approximately $61.90 per hundredweight.(37) After the show, the price dropped as low as the mid $50 range, and meat sales also dropped. Cattlemen assert that the depression continued for approximately eleven weeks.(39) News of the “Oprah Crash” in the cattle market spread quickly, and several cattlemen complained to her producers.(40) Oprah was sensitive to the plight of the cattlemen, and offered them their own forum in a follow-up show a week later, without the presence of animal rights, environmental, or health advocates.(41) Oprah even received a thank-you letter from the President of the National Cattlemen’s Beef Association for providing cattlemen with a chance to “set the record straight.”(42)
Nevertheless, Texas cattlemen Paul F. Engler and Cactus Feeders, Inc. (Texas Beef Group) sued Winfrey and Lyman on May 28, 1996(43) for $10.3 million in damages under Texas’ False Disparagement of Perishable Food Products Act (Texas’ food disparagement law).(44) Under the Texas law, a person is liable for “damages and other appropriate relief” if that person “disseminates in any manner information relating to a perishable food product to the public; the person knows the information is false; and the information states or implies that the perishable food product is not safe for consumption by the public.(45)
In the end, the court sided with Winfrey and Lyman and granted summary judgment in their favor.(46) The judge noted that this was the court’s first opportunity to address and interpret a food disparagement suit, but because he found that the cattlemen did not provide sufficient evidence, he did not have to address the constitutionality of the law.(47) The judge found that cattle were not a “perishable food” under the law. Further, there was no evidence that Lyman and Winfrey had “knowingly” made false statements about the industry with the intent to disparage it.(49) The evidence suggested that although Lyman and Winfrey may have been hyperbolic in their discussion of Mad Cow Disease, there was no proof that they knew their information was false.(50) The judge dismissed the lawsuit, and Oprah declared outside the courthouse, “Free speech not only lives, it rocks!”(51) However, the lawsuit cast a shadow. Although Winfrey and Lyman were vindicated, they were still saddled with thousands of dollars in attorney’s fees.(52) Needless to say, not everyone can afford such a tab.
To date, no one has been found liable under any food disparagement lawsuit. But this doesn’t mean that veggie libel laws have missed their mark. Texas Beef Group v. Winfrey has sent the message that advocates and activists could face huge legal bills just for opening their mouths in criticism against the food industry. Even the powerful and influential Oprah Winfrey appears to have been chilled, despite her ostensible victory. She has declined to speak publicly about the case and even refuses to distribute the “Dangerous Foods” episode to journalists or anyone else who requests it.(53)
Food Disparagement laws are facially unconstitutional. They undermine basic First Amendment rights and threaten a reversion to the days before New York Times v. Sullivan when public discourse was constrained by fears of liability. The Civil Liberties Defense Center is committed to challenging food disparagement laws and defending people’s rights to raise questions and express criticism on issues of public concern.
1. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
3. Texas Beef Group v. Winfrey, 11 F.Supp.2d 858, 862.
4. Auvil v. CBS 60 Minutes, 67 F.3d 816
10. Auvil v. CBS 60 Minutes, 67 F.3d 816
17. Lyman, Howard F. Mad Cowboy: Plain Truth from the Cattle Rancher Who Won’t Eat Meat. Scribner. New York. 1998.
18. Texas Beef Group v. Winfrey, 201 F.3d 680, 682.
21. Lyman, Howard F. Mad Cowboy: Plain Truth from the Cattle Rancher Who Won’t Eat Meat. Scribner. New York. 1998
23. Lyman, Howard F. Mad Cowboy: Plain Truth from the Cattle Rancher Who Won’t Eat Meat. Scribner. New York. 1998
24. Texas Beef Group v. Winfrey, 201 F.3d 680, 682.
25. Texas Beef Group v. Winfrey, 201 F.3d 680, 682
27. Id. at 684.
29. Texas Beef Group v. Winfrey, 201 F.3d 680, 683.
30. Texas Beef Group v. Winfrey, 11 F.Supp.2d 858, 861.
35. Texas Beef Group v. Winfrey, 201 F.3d 680, 688.
36. Id. at 684 37. Id.
42. Id. It should be noted that the “record was set straight” one year later when the USDA ultimately banned the use of ruminant-to-ruminant feed supplements for cattle because of the risk of Mad Cow Disease, vindicating Lyman’s, not the cattlemen’s, concerns.
44. Id. at 685. See http://advocacy.britannica.com/blog/advocacy/2009/11/burger-bashing-and-sirloin-slander-food-disparagement-laws-in-the-united-states/
45. Texas Civil Practice and Remedies Code, Title 4, Section 96: False Disparagement of Perishable Food Products.
46. Texas Beef Group v. Winfrey, 11 F.Supp.2d 858, 864.
47. Texas Beef Group v. Winfrey, 201 F.3d 680, 690.
48. Texas Beef Group v. Winfrey, 11 F.Supp.2d 858, 863.
49. Id. at 863.
53. Sheldon Rampton, John Stauber (1997). Mad Cow USA: Could the nightmare happen here? Madison, WI: Common Courage Press. pp. 192. ISBN 1567511112.