Food defamation laws to get first test in ranchers' suit against Oprah Winfrey States passing legislation to protect agribusinesses


WASHINGTON -- In some parts of the United States, you can be sued for disparaging pears, castigating cauliflower, ridiculing emu meat or -- as TV celebrity Oprah Winfrey learned -- bad-mouthing beef.

Thirteen states, responding to pressure from agricultural organizations, have adopted food defamation laws in the 1990s. More than a dozen states are considering similar legislation.

So far, the laws have been little used. But that could soon change. Their first court test is set for Jan. 7, the starting date for a federal jury trial of a lawsuit filed by Texas cattle ranchers against Winfrey and one of her guests.

The ranchers allege that the cattle industry lost millions of dollars as a result of remarks made primarily by Howard Lyman, a vegetarian and director of the Humane Society's Eating with Conscience Campaign, on the "Oprah" show of April 16, 1996.

Lyman said "mad cow" disease would plague the U.S. beef industry because it is "following exactly the same path they followed in England." Winfrey, apparently impressed by his remarks, said she would stop eating hamburgers.

Many civil libertarians are convinced that the food defamation statutes -- derisively dubbed "banana bills" and "veggie libel" laws by their detractors -- stifle free speech and press.

"Sooner or later, these laws will be held unconstitutional, I'm sure of it," said P. Cameron DeVore, a Seattle lawyer who specializes in freedom of expression.

Most of the laws "penalize speech that is made in the utmost of good faith and advance scientific inquiry and public debate -- but may not yet be substantiated by scientific evidence," said David J. Bederman, a law professor at Emory University in Atlanta. His legal challenge to Georgia's food defamation law was dismissed because the law had not been used there.

Had such laws been on the books decades ago, Bederman said, they could have been used to punish those who first warned of the dangers of DDT or tobacco.

That's nonsense, says Steve Kupperud, senior vice-president of the American Feed Industry Association and an advocate of food disparagement laws.

"If activists stand up and say, 'cauliflower causes breast cancer,' they've got to be able to prove that," Kupperud said.

"I think that to the degree that the mere presence of these laws has caused activists to think twice, then these laws have already accomplished what we set out to do."

Food disparagement laws were triggered by the failure of apple growers in Washington state to obtain damages for losses attributed to a CBS "60 Minutes" broadcast in 1989. The broadcast said Alar, a chemical used to lengthen the time that apples ripen on trees, could cause cancer.

The apple growers' suit was dismissed on grounds that the alleged defamation was directed at a product, not specific producers, and a food could not be defamed.

Agricultural organizations then pushed for laws that would punish false statements about food products rather than the people who produce them, about broccoli rather than the owners of the Bar-B Vegetable Ranch.

Farmers and food producers are eager to use the laws "to fight wacky claims that hurt them in their bottom line," Kupperud said, but they are waiting to see how the Oprah case turns out.

The Oprah Winfrey case will be heard in the courtroom of U.S. District Judge Mary Lou Robinson of Amarillo, Texas, and lawyers on both sides say they are ready for trial.

The suit was filed by Paul Engler, an Amarillo rancher, and Cactus Feeders, a large cattle producer in the Texas Panhandle. They demanded $6.7 million from Lyman, Winfrey and her production company.

"In the stampede to win the ratings race, the truth is often the first to get trampled," Engler's suit said.

"As a direct result of what has been called the 'Oprah Crash,' the cattle industry suffered millions of dollars in losses and loss of confidence in the beef product."

Under Texas law, anyone who says that a perishable food product is unsafe -- and knows the statement to be false -- might be required to pay damages to the producer of such a product.

Kevin Isem, a lawyer for Engler, said in an interview that a pretrial interrogation of Winfrey showed "she relied on her staff and the staff didn't do squat to find out whether his [Lyman's] statements were true or not."

But Charles L. "Skip" Babcock of Dallas, a lawyer for Winfrey, said there was plenty of research.

"The question was whether [mad cow disease] can happen here, and the show presented people on both sides of the issue," Babcock said.

He characterized Winfrey's remarks as "opinion, hyperbole or rhetoric, not statements of fact. Oprah has been quoted as saying, 'I asked questions about a major health issue, and that's all I was doing.' "

The Texas judge refused to dismiss the case on free-speech grounds. But the constitutional issue is expected to be raised again, as are the broader issues the food disparagement laws address.

The 13 states with food disparagement laws are Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota and Texas.

States reported to be considering similar legislation include California, Iowa, Maryland, Nebraska, South Carolina, Vermont, Washington, Wisconsin and Wyoming.

Pub Date: 12/29/97

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