Ag disparagement laws take root

Editor’s note: This is the final part of a four-part series on the defamation lawsuit filed by Beef Products Inc. against ABC News.

Please see Part 2 of this series for an update from BPI.

Beef Products Inc., a m

ajor producer of Lean Finely Textured Beef (LFTB), filed a defamation suit against ABC News in South Dakota circuit court Sept. 13. The action stems from reports by ABC News in March about LFTB, the so-called “pink slime.” The lawsuit was filed under South Dakota’s agriculture disparagement law.

Agriculture disparagement laws are laws enacted at the state level that allow producers of agriculture and aquaculture products to sue individuals and companies that purportedly make statements about the product that directly result in a loss of profit for the producer. The purpose of these laws is to provide economic stability for state economies that primarily are dependent on agriculture production and distribution.

To date, 13 states have agriculture and aquaculture disparagement laws. They are: Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota and Texas. Additionally, more than 30 states have considered enacting such legislation. With the exception of the Oprah Winfrey case, there has been very little public discussion about the constitutional implications of such laws, but there are clear First Amendment implications.

Agriculture disparagement laws are different from so-called “ag gag” laws that are on the books in five states: Kansas, Iowa, Utah, North Dakota and Montana. The “ag gag” laws are designed to limit access and unauthorized media coverage in livestock and agriculture production facilities.

The case that launched the agriculture disparagement law initiative was Auvil v. 60 Minutes in 1989. The CBS news magazine program aired a segment based on a report from the National Resources Defense Council (NRDC) that discussed possible hazards related to the use of Alar, a pesticide commonly used on apples. The NRDC report indicated that Alar remained on the apples and in the skin of the fruit, even after washing. This led to consumption of the pesticide by consumers. The report suggested that, since children consume significant amounts of commercial apples, the use of Alar was a direct threat to the health and safety of children.

After the story aired, there was a substantial downturn in the purchase of apples. More than $3 million was lost due to the perishable nature of the product. Subsequently, several small apple producers where forced into bankruptcy, and the apple industry and businesses dependent on apple sales suffered financial losses. A group of apple growers from the state of Washington filed a lawsuit against CBS, its local affiliate, NRDC, and the public relations firm hired by NRDC to promote the Alar report findings. By invoking common law product disparagement laws, the plaintiffs sought to recoup their financial losses.

The defendants sought a summary judgment to have the case dismissed. The local CBS affiliates and the NRDC public relations firm were granted the judgment and absolved of culpability. The court stated the plaintiff’s claim did not meet the “of and concerning” precedent set forth by The New York Times v. Sullivan. The case progressed though the judicial system up to the U.S. Court of Appeals for the Ninth Circuit. The court granted a summary judgment to CBS and NRDC. This court however, cited precedent set by Bose v. Consumer Union Publishing, a product disparagement case. Under this precedence, the plaintiff is required to prove actual malice by the defendant – that the defendant knowingly and willingly published false information about a product. Since the NRDC report was scientifically valid, this could not be proven.

As a result of the Auvil v. 60 Minutes case, many agriculture and aquaculture associations discussed what they perceived to be deficiencies in common law tort. They sought remedies that would allow recovery of monies lost from a decrease in sales as a result of publicly made disparaging comments about their products.

The combination of the New York Times v. Sullivan and the Bose cases provides the framework for most judgments regarding defamation and disparagement. A significant sector of agriculture producers said these standards did not adequately reflect and protect their products. This largely is a result of the perishable nature or shelf life of various agriculture products. Proponents of the agriculture disparagement laws felt there should be a special set of laws to protect this industry from “junk science” or malicious statements because, unlike other industries, most agriculture products cannot be warehoused or held to “ride the market.” Large producers and a variety of agriculture related associations began to lobby state legislatures to enact laws that would provide protection from disparaging comments and the ability to recover damages from market losses as a result of negative public comments.

Colorado was the first state to consider an agriculture disparagement law on 1991. The grounds for the introduction of the bill to the Colorado Legislature were to protect the state economy, which is based largely on agriculture goods and labor. This first attempt was not successful; it would be a few years before Colorado would enact their agriculture disparagement law, which has proven to be one of the most stringent of the statutes. Louisiana was the first state to enact an agriculture disparagement law. The legislature in that state was under pressure from cantaloupe producers who had suffered market losses from media coverage of an E. coli outbreak that had been traced back to the fruit. Twelve more states followed with their own “veggie libel” laws.

Each state’s version of the law is different. Under most laws, awards for pecuniary and punitive damages can be sought. Uniquely, in Colorado, defendants are subject to criminal charges as well as civil. All have a statute of limitations of one to two years. What party may file a lawsuit is different in each state. Additionally, the types of products protected under these agriculture disparagement laws vary from state to state. An example of this can be seen in a comparison between the neighboring states of North Dakota and South Dakota. The South Dakota statute protects any consumable food item produced in the state. North Dakota’s statute is much broader, in that it extends protection to any agriculture product from the state. A difference such as this is significant to the public discourse on food safety and agriculture production methods.

There was a flurry of articles in various law review journals in the middle to late 1990s discussing the constitutionality of agriculture disparagement laws. Scholars agree that these laws violate the First Amendment. The primary concern is about the “chilling effect” of these laws, in which people become reluctant to discuss issues in an open manner, or to challenge current practices and ideas. Additionally, when discussion of public concerns takes place, there inevitably are errors made without malicious intent. For free debate to occur and for democracy to be achieved, people cannot be afraid of participating in critical, public discourse.

While scholars agree agriculture disparagement laws are unconstitutional, to date there has been no court ruling on the constitutionality of the laws. Until the BPI vs. ABC News case, there had been five cases brought to court under agriculture disparagement laws. Only two have resulted in written decisions by state courts[O1] . None has made it past the lower courts.

One of the two cases that have resulted in written decisions was brought against the state of Georgia by law professor and attorney David Bederman on behalf of two consumer groups. This suit asked the state court to rule on the constitutionality of the Georgia agriculture disparagement law. However, rather than doing so, the Georgia court dismissed that case and issued the judgment that neither Bederman nor the consumer groups met the “of and concerning” criteria; thus, the issue could not be decided in this case.

The other of the two cases is by far the more prominent – and most likely the only case widely covered by U.S. media. It is the 1996 case Texas Beef Group v. Oprah Winfrey. In addition to the talk show host, her production company and her guest in the episode in question also were sued. The group of Texas cattlemen stated they had suffered losses into the millions of dollars as a result of an Oprah episode in which she spoke with food safety experts about the growing concern of BSE (bovine spongiform encephalopathy), commonly known as “mad cow disease.” In the episode, the BSE expert stated that “mad cow disease is the AIDS of the future.” To that, Oprah commented that fact had “stopped her from ever eating a burger again.”

The cattlemen said that, because of Oprah’s public prominence, she had incredible impact on consumers and their purchasing patterns. They also claimed that a source from the cattle industry, which was interviewed, was not allowed equal airtime. They also claimed that comments from the cattle industry representative were edited out to make the episode more powerful – and, subsequently, biased – against the beef industry.

Oprah’s legal team fought these allegations under First Amendment protection; a battle that cost more than $500,000. The Oprah team said they had done all that was reasonably expected to prove the validity of the claims made by the BSE expert, and the program had the right to debate issues of public concern freely.

After months of litigation, the Texas court ruled that the cattlemen’s group could not sue, because the cattlemen’s product was not perishable. The court stated that, while the animals’ value may decrease over time, the cattle could be held until the market recovered. The case against Oprah was dismissed. Again, the court ruling did not address the constitutionality of the law, but rather who may bring a suit under the law.

There had been no cases under agriculture disparagement laws for more than 10 years. Those who believe these laws to be clear First Amendment violations saw that as a sign recognizing the laws’ unconstitutionality. The thought was that agriculture producers and associations may see the unlikelihood of winning a case under an agriculture disparagement law, and thus save money and time by not filing suit. To date, none of these laws has been repealed. They are all still on the books, waiting to be used like the South Dakota law was in September.