User:Afgmcdonald/foodlibelsandbox

Notes for Improvement
-add a criticism section

-combine all of the notable cases under one "notable cases" header --> oprah, new lean textured beef case

-adding an origin section

-adding an "in the media section" about the references to food libel laws in Food Inc documentary

'''BELOW IS EVERYTHING I HAVE DRAFTED FOR THE ARTICLE. NOTHING HAS BEEN MOVED YET.'''

Origins
On February 26, 1989, CBS News' 60 Minutes aired a segment entitled "'A' is for Apple," in which 60 Minutes anchors investigated a report published by the National Resources Defense Council (NRDC) on the safety of daminozide, a growth regulator used on apples to preserve their freshness. The NRDC, and 60 Minutes along with them, claimed that daminozide, sold under the brand name Alar, was carcinogenic, especially when consumed by children. According to the report, Alar remained in apple skin even after processing, meaning that not only raw apples, but also apple products, like apple juice and apple sauce, could pose health risks. Immediately after the segment aired, consumers panicked and apple sales declined by nearly 60% nationwide. Some apple growers reported losing upwards of $100 million in revenue as a result. Seeking recompense, eleven Washington State apple growers banded together to sue CBS for trade libel: the intentional publication of false information about a product. Trade libel laws stipulate that the burden of proof falls on the plaintiff, meaning that the growers were tasked with proving beyond reasonable doubt that 60 Minutes' claims about daminozide's carcinogenicity were dubious before the case could go to trial. The growers failed to do so, and their case was dismissed as a result. In response, lobbyists affiliated with the agricultural industry began to campaign for stricter trade libel laws specific to agricultural products. They argued that agricultural products deserved special protections because of their perishability: they might spoil before the truth of claims regarding their safety had been verified. As a result, thirteen states adopted food libel laws, which provide for larger settlement sums than do regular trade libel laws and, unlike trade libel laws, often place the burden of proof on a case's defendant, rather than its plaintiff.

Criticism
Food libel laws have faced opposition from free speech defenders, who argue that they restrict speech about agricultural products to a degree which is unconstitutional. Of particular concern is that some states' food libel laws seem to violate the "of or concerning" precedent which was established in the Supreme Court's 1964 decision on New York Times Co. v. Sullivan. Mr. Sullivan, the commissioner of the Montgomery, Alabama police department, filed suit against the New York Times after the paper ran an advertisement paid for by a civil rights group which criticized the Montgomery police department's treatment of civil rights protestors. The Supreme Court's ruling in favor of the New York Times was supported in part by their argument that the advertisement was not explicitly "of or concerning" Mr. Sullivan, and so did not constitute libelous speech. Food libel legislation which defines disparagement of perishable agricultural products as any false statement that implies a product is unsafe, like the legislation present in Louisiana, Mississippi, Texas, and South Dakota, has been thought by some commentators to contradict this "of or concerning" element. Such legislation might allow speech involved in marketing campaigns, like those that tout organic products as superior to their non-organic competitors, to be construed as implying the impurity or poor quality of certain products, and thereby potentially illegal. States which broadly define the parties who are eligible to sue under food libel laws have also come under criticism for disregarding the "of or concerning" element. Critics' argument is that defaming speech about an agricultural product is not explicitly "of or concerning" parties only tangentially related to that product, like its transporters or marketers, meaning that those parties should not be able to file suit if the product is disparaged.

Food libel laws have also been criticized for their non-traditional placement of the burden of proof on the defendant rather than the plaintiff. In both defamation and trade disparagement legislation, plaintiffs are tasked with proving to the court that the speech in question is false. In food libel legislation present in all but two of the states which have food libel laws on their books, defendants are tasked with proving to the courts that their statements about the agricultural product in question are true. This is done by presenting scientific evidence to support the claims made about product safety and enlisting expert witnesses to substantiate those claims. Because these steps are so costly, there is concern that only very wealthy defendants would be able to muster a defense against a food disparagement claim.

For reasons such as those described above, food libel laws and cases filed under them have been accused by online commentators and civil liberties activism groups, such as the Civil Liberties Defense Center, for propagating a chilling effect. In a legal context, the "chilling effect" describes the phenomenon by which speech on a certain subject is indirectly curtailed by the passage of laws. Journalists have reported that simply the risk of legal retaliation for writing about food safety issues has stopped them from doing so. Smaller publishers, without the financial means to mount a defense should the producer of a food product oppose an author's commentary on it, have significantly revised or even canceled potentially liable books. Robert Hatherill's Eat to Beat Cancer and Britt Bailey’s Against the Grain: Biotechnology and the Corporate Takeover of Your Food are notable examples of this practice. The former was subject to extensive editing by its publisher--whole sections related to links between meat and cancer were deleted--and the latter was canceled entirely after its publisher received a letter from Monsanto warning of a possible suit. Ozzie Zehner's Green Illusions, an analysis of the detrimental effects of certain environmental protection initiatives, was self-censored in response to food libel laws because it included criticism of agribusiness. In the introduction to his chapter on consumption, Zehner wrote, " So-called food disparagement laws (also known as “veggie libel laws”) enable the food industry to sue journalists, writers, and other people who criticize their products, often placing the burden of proof on the defendant...Unlike Winfrey, I do not have the financial resources to defend myself in such a suit, and as a result you and other readers will be cheated out of the whole story," referencing the Texas Beef Group vs. Oprah Winfrey case.

The Winfrey case and others filed under food libel laws have been classified by critics and commentators as SLAPP suits, an acronym which means "strategic lawsuit against public participation." Calling a case a SLAPP suit means alleging that its plaintiff filed suit not because they expected to win damages, but instead to set a precedent which might intimidate others out of speaking out against the them or their products. In the context of food libel, the implication is that agricultural companies sue under food libel laws in hopes of proving to the public that criticism of their agricultural products risks a costly, inconvenient legal battle, and so should not be undertaken. Some states, but not many, have statutes intended to prevent against the filing of SLAPP suits.

Food Libel Laws in the Media
Public awareness of food libel laws and their impacts rose after the airing of Robert Kenner's 2008 documentary Food Inc., which attempts to investigate the commercial production of food. The documentary features a scene in which Robert Kenner interviews Barbara Kowalcyk, a scientist and food-safety activist whose son died after eating a hamburger contaminated with E-coli. When Mr. Kenner asks Ms. Kowalcyk how her eating habits have changed after her son's death, she replies that she is unable to discuss the subject because doing so might open her up to a lawsuit under food libel legislation.

Beef Products, Inc. v. ABC News (Pink Slime Case)
On March 7, 2012, ABC News aired a segment dedicated to investigating a beef product called lean finely textured beef (LTFB) sold by the beef company Beef Products, Inc (BPI), headquartered in South Dakota. ABC News correspondents, including Diane Sawyer, claimed that a whistleblower had revealed that BPI's LTFB was used as a filler in ground beef sold by other companies so that they could cut costs during production. According to the unknown whistleblower and ABC News, BPI's LTFB was derived from beef trimmings sprayed with ammonia, and resembled "pink slime." Throughout March and April, ABC News continued to run segments and publish articles about BPI's LTFB, including publishing updates on the company's financial losses after the original segment's airing.

On September 12, 2012, BPI sued ABC News for food disparagement under South Dakota's food libel legislation. They claimed that ABC News falsely portrayed their product, lean finely textured beef, as unfit for human consumption. BPI also claimed that ABC News' disparaging content led to serious financial damages for BPI. By their report, sales of BPI's LTFB dropped from five million to two million pounds per week, prompting the closure of three out of four production facilities and the lay-off of 700 employees. ABC News responded by calling for the case to be dismissed, arguing that it was within ABC News' First Amendment rights to investigate matters of possible concern to their viewers.

The case went to trial in June, 2017. Under South Dakota's Agricultural Food Products Disparagement Act, BPI could have received as much as $5.7 billion in statutory trebled damages were ABC News found liable. After the case had been tried for only three out of the expected eight weeks, ABC News and BPI reached a settlement of $177 million, the largest settlement recorded for a media defamation case. The terms of the settlement were not released.

References