Repeal Colorado’s Food Sedition Law
Thomas B. Kelley & Ronald Collins

Thomas Kelley is a first amendment lawyer with the law firm of Faegre & Benson in Denver; Ronald Collins heads the FoodSpeak Project at the Center for Science in the Public Interest in Washington, D.C. This op-ed appeared in the Denver Post on Sunday, September 19, 1999.

Colorado is the only state in the nation — and most likely the only government in the world — that makes it a crime to disparage food. Incredibly, it is an offense against the state to wound the reputation of, say, a lemon. A law right out of the 18th century, except that the sedition laws of old made it illegal to criticize rulers, not rutabagas. All of this would be funny if it were not so contrary to the First Amendment and therefore so potentially dangerous to the free and wide-open exchange of information about food and food-safety.

In 1994, our state legislature amended a decades old food safety law and patched in new criminal provisions for disparaging food. The poorly drafted law (35-31-101) declares, in relevant part: “It is unlawful” for anyone “to make any materially false statement” for the purpose of “restraining trade” in “fruits, vegetables, grain, meats” or other grown foods “used in any manner or to any extent as food for human beings or for domestic animals.” Thus, anyone who knowingly disparages food is a criminal. That goes for disparaging dog food, too!

Of course, the law is so vague that it leaves many free speech questions unanswered. For example, if a book publisher or book seller distributes a book about the dangers of pesticides on fruit, can that qualify as “restraining trade in fruits?” If so, imagine what that would mean for the modern-day equivalent of books like Rachael Carson’s Silent Spring. Or what about political statements about food? For example, “boycott brand Z meats since Company Z subjects its workers to inhumane working conditions.” So much for uninhibited expression like that found in Upton Sinclair’s The Jungle. See you in jail.

Colorado’s food-libel law criminalizes the use of “materially false statements” about food. But nowhere is “false” defined. How, then, is it to be determined? Is current scientific evidence the benchmark? For a statement to be “true” must it comport with the weight of such scientific evidence, or is reliance on some credible studies enough? What about scientific inquiries? What about industry-sponsored studies, either available or unavailable to the public? Or what about a consumer reporter or environmentalist who makes statements based on government reports? Is that enough to stay the statute’s criminal sanctions?

What the statute makes clear is that criminal liability does not require a statement to be directed at a particular producer or food distributor. It is enough to criticize food generally — e.g., to scorn apples, corn, oats, or chickens. It is rather like being jailed for disparaging paint. But such laws, civil or criminal, are “constitutionally defective,” according to the Supreme Court. They violate the First Amendment because they penalize expression not “specifically of and concerning” a particular person or company.

Now it is sometimes said, by way of a “don’t worry” defense, that no prosecutor with any gray matter would go after a person for belittling broccoli or criticizing cranberries or ridiculing rice. Let us hope so. But if the law is never to be enforced, then why have it? Does that not speak volumes about why the law should be repealed? Moreover, the freedom of citizens to speak about food and food-safety should not depend on the right-mindedness and benevolence of a local prosecutor.

Food-safety, diet, the environment, and the public health are a major part of today’s consumer discourse. True to our First Amendment values, we need more information, not less, about topics such as bacteria in meats, or pesticides in fruits, or cholesterol in dairy products, or pollutants in fish. What Judge Learned Hand said years ago about political speech is equally true about this kind of consumer-information speech: The First Amendment “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection.” Colorado’s law silences such tongues and thereby subverts the common welfare.

It is a silly law with serious consequences. When the legislature next meets, we need to repeal Colorado’s food-disparagement law; in its place we need more freedom of speech in the marketplace — the kind that is the hallmark of a self-informed democracy.