Congress Must Address Food-Disparagement Laws
Ronald K.L. Collins

Ronald Collins heads the FoodSpeak Project at CSPI, which filed an amicus brief in support of Ms. Oprah Winfrey in the U.S. Court of Appeals for the Fifth Circuit. (The brief was also prepared and signed by the Association of American Publishers, American Booksellers Foundation for Free Expression, and the Society of Professional Journalists.) What follows is a slightly expanded version of an op-ed that appeared in the Baltimore Sun on June 10, 1999.

It is widely known: The Oprah Winfrey lawsuit is over. Recall, in 1996 Texas cattle ranchers charged that she disparaged their livestock when she expressed concern about the safety of eating hamburgers. Oprah fought the suit — and won. Case over. Well, not quite. For after 35 months of litigation and millions of dollars in attorneys fees, Oprah is still fighting lawsuits leveled against her. Just last week a federal appellate court in New Orleans heard the cattlemen’s appeal.

The lawsuit against Oprah Winfrey (and Howard Lyman of the Humane Society of the U.S.) reveals how much the food libel laws of Texas and 12 other states can cost individuals who speak out on food and food-safety. Such laws war with freedom of speech by threatening food critics with costly and protracted litigation. For anyone who has anything critical to say about an agricultural product the message of the laws is simple: “Shut up.” Oprah did not heed that warning.

What is especially troubling about these state food disparagement laws is that hey proclaim the law for the entire nation. Thus, Oprah (who is based in Illinois) can be hauled off to court in Texas, where the cattlemen reside. Incredibly, then, national communication is dictated by the crazy laws of Texas and the other few states with food libel laws.

Basic to our constitutional system is the notion the states cannot interfere with the nation’s business. That is, they cannot use their laws to impede interstate commerce, either directly or indirectly. Yet that is what 13 states are currently doing with their food libel laws — and this contrary to the First Amendment, too.

Example #1: A book publisher — in New York, Maryland, or elsewhere — must self-censor its books on topics such as food-safety, the environment, and related matters so that the author?s message does not run afoul of food-disparagement laws like the one in Alabama. Anyone who disparages an agricultural product (e.g., lettuce) in that state can be hauled off to court. Under the law, both author and publisher can be sued for punitive damages even if they did not or could not know that the allegedly disparaging statement fell short of the demanding “scientific” evidence standard required by the state statute.

The free speech “chill” that publishers and writers feel is not hypothetical, as University of California at Santa Barbara Professor J. Robert Hatherill discovered. Before his Eat to Beat Cancer was published last year, his “publisher stripped lengthy passages from my new book. I was not allowed,” he noted in a recent Los Angeles Times op-ed. article [April 12, 1999], “to disclose dangers inherent in some common foods like . . . meat products. The problem had nothing to do with whether there was sufficient evidence to support the claims — there is — it came down to fear of litigation. I was told, ‘We could win the lawsuit, but it would cost us millions, and it is just not worth it.’”

Though both Hatherill and his publisher are based in California, which has no food libel law, their message to the nation was nonetheless regulated by the laws of certain other states. Hence, the food-libel laws of Alabama or Louisiana, for example, can decree what a publisher may or may not communicate about food, food-safety, or the politics of food. Such laws would have made it tough to publish Upton Sinclair’s The Jungle (1906) or Rachel Carson’s Silent Spring (1962).

Example #2: A recent issue of The Nation [April 5/12, 1999, at p. 20] quotes Alec Baldwin, the actor, as saying: “I have been going to every major outlet — the Discovery Channel, A&E, the History Channel, every PBS outlet in the major market, NET, KCET, KQED in San Francisco, WGBH in Boston — looking for financing to help me to produce a documentary, titled ‘The History of Food’ about the political and economic determinants of what we eat in this country. And every single person I talk to who has an IQ over 100 is overwhelmingly intrigued by the idea of the show. But all of these outlets, they’re like, ‘Oh, God! We can’t do that, because of that Oprah Winfrey beef lawsuit.’”

In other words, national, local, and cable stations are feeling the free speech “chill” of a Texas food libel statute. However objectionable, it is certainly understandable that a TV station would not want to subject itself to the fate that has befallen Oprah Winfrey.

Food libel laws violate the rights of anyone who speaks about food by way of a national medium. Thus, state food libel laws have a real and chilling effect on book publishers, broadcasters, magazines and newspaper publishers, and on anyone who has a website. In this way, then, they very much interfere with the workings of those who conduct business by communicating nationally.

At the very least, we must have national legislation to protect the right of individuals and businesses to communicate interstate. Such legislation would be premised on the notion that information is communication and that interstate communication is synonymous with interstate commerce. State food-disparagement laws, like state laws regulating interstate transportation, impermissible interfere with the nation’s commerce.

The major features of such proposed legislation would be as follows:

  • It would prevent a state from applying any product-disparagement law to communications that originate outside of that state;
  • communications originating within a state would remain subject to existing state laws;
  • civil liability for interstate communications disparaging products would be established by Congress consistent with existing common law and First Amendment requirements;
  • and finally, recovery under such national legislation would be limited to actual damages with neither presumed nor punitive damages to be allowed.
Thirteen states ought no longer to be able to dictate how the nation’s commerce in communication is to be regulated. Equally important, they ought not be allowed to do so when their laws violate the First Amendment. The nation’s freedom of speech can no longer be entrusted to the parochial interests of a few states.