Veggie Libel, Wilted Press
How Food-Disparagement Laws Gag Reporting On Issues Of Public Health And Safety.

by
Ken Silverstein

Ken Silverstein is the author of Washington on $ 10 Million a Day: How Lobbyists Plunder the Nation (Common Courage Press, 1998). This article originally appeared in The Nation, April 20, 1998, p. 23, and is reprinted with permission of the publisher.

 "Free speech not only lives, it rocks," Oprah Winfrey exclaimed after a federal jury in Amarillo ruled against a group of Texas cattlemen who claimed that the talk-show queen had illegally bad-mouthed American beef during a show on mad cow disease. The February 26 verdict was certainly good news, but its real lesson may be that free speech rocks loudest for rich folks like Oprah, who spent up to $1 million defending herself against a lawsuit filed under Texas's "veggie libel" law.

Oprah's trial was expected to be a test case for veggie libel statutes-under which thirteen states now make it a crime to "disparage" agricultural goods-but the judge ruled it didn't meet the criteria, so the case ended up being a routine matter of business defamation. Indeed, as Oprah was uncorking the champagne, two other food-disparagement lawsuits were very much alive in Texas. Emu ranchers are suing Honda over a commercial in which a character remarks, "Emus, Joe. It's the pork of the future." The plaintiffs claim this caused severe damage to the market for emu meat. And A- I Turf has charged James McAfee, a Texas agricultural agent, with making libelous remarks about its sod.

In perhaps the most obnoxious lawsuit, Buckeye Egg Farm is targeting the Ohio Public Interest Research Group (OPIRG) and its director, Amy Simpson. The case stems from OPIRGs denunciation of the company's practice of repackaging old eggs and selling them in cartons with new expiration dates. "The kind of hard-hitting public expression you find in Upton Sinclair's The Jungle would today almost surely be met with a defamation suit," says Ronald Collins of FoodSpeak, an emerging coalition organized by the Center for Science in the Public Interest and including Public Citizen, the American Civil Liberties Union, People for the American Way and others.

Located in Croton, Ohio, Buckeye is one of the nation's largest egg producers, shipping about 5 million eggs a day under such brand names as Health Ray and Flavorite. Formerly called AgriGeneral, it is not known for enlightened business practices. Its owner, Anton Pohlmann, was convicted in his native Germany of cruelty to animals following a 1994 incident in which his firm was ordered to kill 60,000 salmonella-infected hens. Pohlmann gassed the hens with carbon monoxide. In 1996 a German court also convicted Pohlmann of selling contaminated eggs.

Pohlmann's record in Ohio is little better. Last year OSHA fined the company $1 million for miserable working conditions at its chicken houses and poor living quarters afforded its migrant workers. Inspectors found human sewage backing up in basements, inadequate heating and dangerous electrical wiring. In another case, Amish children as young as 11 were found to be working at an AgriGeneral plant. The children were supplied by an independent contractor, and company officials claimed they had not realized the preteens were underage.

Buckeye has notched a variety of other misdeeds on its corporate belt. It was fined $113,000 by the Ohio E.P.A. for polluting local water supplies. Clouds of flies attracted by chicken manure have invaded the homes of nearby residents (who report that in February, the heart of winter, the fly infestation was so intense that fields around the facility were humming). "I've sued a lot of corporations, but it's hard to find a company that does more bad things than Buckeye," says Mark Finnegan of the Equal Justice Foundation, a nonprofit civil rights law firm based in Toledo.

Indeed, it was while preparing a class-action suit on behalf of migrant workers there that Finnegan learned Buckeye was backdating eggs. The workers say Buckeye subjected them to twelve-hour-plus shifts without paying hundreds of thousands of dollars in overtime. Dozens of workers told of an "egg rewash" line where employees take eggs previously packed but not shipped and mix them with fresher eggs, repackaging them with new expiration dates so as to be acceptable to supermarkets.

In sworn depositions workers say rewashed eggs offered to consumers as fresh were from several weeks to four months old. Some workers told Finnegan they became sick after picking out maggot-covered eggs to be discarded.

Finnegan amended the overtime case with a charge that the company’s practices violated Ohio's consumer fraud statute. OPIRG joined the lawsuit, and at a March 25, 1997, press conference, Simpson blasted the company for actions she labeled "outrageous, appalling and clearly deceptive to consumers."

Buckeye initially denied that it repackaged eggs, but its attorney, G. Roger King of the firm Jones, Day, Reavis & Pogue, now acknowledges that it has done so "from time to time." Nonetheless, Buckeye sued Simpson and OPIRG-whose annual budget is about $100,000-for "disparagement of agricultural products" and "tortious interference with contracts and business relations." The company's complaint cites one sentence from Simpson's press conference, in which she said OPIRG had "no idea how many, if any, consumers have been made ill by consuming these eggs."

King says repackaging doesn't affect safety. "The inference [made by Simpson] was that Buckeye sent eggs to market that could make people sick and that people should not purchase the company's products." Finnegan counters that no one ever charged that people would get sick eating Buckeye eggs, only that the company is guilty of consumer fraud: "This is like a used car dealer who rolls back the odometer on his cars. It's no defense to claim that it doesn't matter because the car still starts."

The food industry began pushing for veggie libel laws following the uproar over Alar in 1989. Washington State growers said that media depictions of the chemical as a cancer threat-most famously in a 60 Minutes episode-caused sales of apples that were treated with Alar to plummet. The growers sued CBS News but lost when the court held that the expose should be judged by standards established by the Supreme Court beginning with its 1964 decision in New York Times v. Sullivan. Under those standards, meant to foster debate about topics of public import, libel plaintiffs must demonstrate that defendants made statements with "knowledge or ‘reckless disregard’ of their falsity."

Angered by this defeat-and despite the federal E.P.A.'s subsequent decision to ban Alar as a carcinogen-the food industry prodded various state legislatures to pass veggie libel laws. Under such statutes, the onus is on defendants, who must prove that their statements are based on "reasonable and reliable scientific inquiry, facts, or data." Because agricultural corporations produce and control much of the information available about food science, the companies themselves are in a particularly strong position to influence what is considered "reasonable and reliable."

Some veggie libel laws also provide legal fees for plaintiffs, but not for defendants, who prevail in court. Since even victory can therefore lead to bankruptcy for defendants, cash-rich corporations have every incentive to file frivolous lawsuits in order to harass and intimidate their critics.

For example, in response to its efforts to stop Hawaii from irradiating exotic tropical fruits, the Vermont-based public interest group Food & Water received a threatening letter last year from attorneys hired by the United Fresh Fruit and Vegetable Association. The letter pointedly noted the emergence of food-disparagement laws and warned that "Food & Water's actions will be closely scrutinized.... We strongly advise you to cease and desist from these irresponsible actions immediately." This crude tactic failed when Food & Water gleefully reported the action in its newsletter and said it looked forward to filing a countersuit over the threat to its right to free speech.

But David Bederman, a law professor at Emory University in Atlanta who is serving as a consultant to several defendants

food libel cases, says the possibility of being sued has many food safety advocates and journalists running scared. "News stories on food safety issues are being subjected to a very high level of libel screening and pre-clearance," he says. "I'm hearing about cases where stories are being spiked by lawyers." He declined to provide details, and news organizations are loath to admit their capitulations.

In the egg rewashing case, Mark Finnegan is offering OPIRG pro bono legal representation and believes Buckeye has no chance of prevailing in court. The lawsuit, though, has had a marked impact on OPIRG's activities. Defendant Simpson, who calls the suit "incredibly intimidating," says it has made her job of "monitoring what I think are unconscionable business practices difficult, to say the least."

Meanwhile, Buckeye has been threatening neighbors, journalists and local officials who have criticized the company. A health official in Marion County, Ohio, who has opposed Buckeye's plans to expand its operations recently received a letter saying he would be sued if he continued to make "defamatory" remarks about the company. "Big companies like Buckeye can now use the [veggie libel] law to punish and muzzle their critics," Simpson says. "Telling the truth is no longer enough."


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