Food Slander Laws Stifle Dissent
New York Times 6/1/99
Farmers' Right to Sue Grows, Raising Debate on Food Safety

By MELODY PETERSEN

Every week, it seems, brings a new food scare. And each scare, whether
valid or dead wrong, has the potential to jolt the nation's diet.

But ever since apple sales plummeted a decade ago, after a report by
CBS News demonized the chemical Alar, food producers, crying foul,
have been fighting back.

At their urging, 13 states passed laws to help protect farmers and
food companies from criticism that could lead consumers to shun their
products. One such law was used, unsuccessfully, by a group of Texas
cattlemen to seek damages from Oprah Winfrey, the talk-show host,
after she made disparaging remarks about beef.

Now, though, critics say those laws are putting a chill on the
continuing debate about what the public should eat.

Though some publishers and broadcasters continue to put out new
reports on food, other media companies, especially smaller ones
worried about the high cost of defending a lawsuit, have stricken
information from manuscripts, avoided certain food issues or, in one
case, dropped a book project that was already at the printer.

Food producers say they need protection against irresponsible claims,
but critics say the laws cut off debate on evolving health issues.

"It's like the Catholic Church telling Galileo in the 1620s that he
was not allowed to trumpet a new viewpoint," said Bruce E.H. Johnson,
a Seattle lawyer who represented CBS in the apple growers' suit.
"These laws are designed to lock orthodoxy in place."

If the laws had been in place in the 1960s, Johnson said, Rachel
Carson might not have found a publisher willing to print "Silent
Spring," her groundbreaking book on the dangers of pesticides.

"If society wants to continue to have safe food," he said, "you need
to have free and open discussion of the risks."

The laws, which are aimed at plugging holes in existing libel laws,
differ in each state. But because books and television shows must play
to a national audience, the statutes in effect are reaching across
state borders, causing consumers everywhere to get less information
about food safety.




Alec Baldwin, the actor, said he had recently approached several
television channels with a proposal for a documentary called "The
History of Food." Baldwin contended that one executive at the
Discovery Channel balked when he explained that a part of the
four-hour show would be devoted to pesticides, herbicides and some
disputed practices used to raise beef.

"He said, 'Oh no, we could never do that,"' Baldwin said. "You could
see that these program people that we pitched this to did not want
these things discussed."

Karen Baratz, publicity director for the Discovery Channel, which is a
unit of Discovery Communications, said the executive recalled the
discussion with Baldwin differently. The executive said he had not
made a decision about the project because he had not received a
written proposal.

Last year, editors at Renaissance Books in Los Angeles called J.
Robert Hatherill, a research scientist at the University of California
at Santa Barbara, to tell him they had cut long passages from the
manuscript of his book "Eat to Beat Cancer." Gone was information on
growth hormones administered to dairy cows, Hatherill said, as well as
facts from a study showing the amounts of lead found in
over-the-counter calcium supplements.

"The book is a very watered-down version of what I intended," he said.


Renaissance, through a spokesman, declined to comment.

And a year ago, Vital Health Publishing of Bloomingdale, Ill.,
canceled a book, "Against the Grain: Biotechnology and the Corporate
Takeover of Your Food," after the manuscript had been sent to the
printers. The publisher had received a letter from a lawyer at
Monsanto Co. who said he believed the manuscript, which he had not
seen, included false statements that would disparage a herbicide
called Roundup, made by Monsanto.

Marc Lappe, a toxicologist and co-author of the book, said the
manuscript had already been approved by the publisher's lawyer. But
Monsanto's letter changed the lawyer's mind, Lappe said, because of
concerns that the publisher could be sued under the food libel laws in
other states. Lawmakers in Illinois have defeated efforts to enact a
similar law.

David Richard, the owner of Vital Health, said he had been trying to
get insurance to protect against libel actions when he received
Monsanto's letter.

"I was scared," Richard said. "As soon as I told my insurance agent
about the letter, he would not return any of my calls. I had no
choice. I had to let go of the book."

Lisa Drake, a spokeswoman for Monsanto, said the company did not
intend to suppress publication. She said Monsanto lawyers had worried
that the book would contain errors after they read a magazine article
written by its two authors that, she said, included inaccuracies. The
company was asking only that those errors be corrected, she said.

"We're respectful of differing points of view," Ms. Drake said.

Lappe and his co-author, Britt Bailey, later took their manuscript to
another publisher, Common Courage Press, which published the book in
November -- and has not heard from Monsanto.

Many people have brushed off the state laws as silly, so absurd that
they could have gotten former President George Bush in trouble for
shunning broccoli.

And many lawyers who have studied the 13 laws say they believe many
will eventually be overturned as unconstitutional.

Floyd Abrams, a lawyer who is an expert on First Amendment issues,
said many of his clients, which include large media companies, did not
view the state laws as a threat because they appear to be
unconstitutional. But other media companies, those that cannot afford
hefty legal fees, may feel differently, he said.

"A lot of smaller publishers do not want to be sued," Abrams said.
"They do not want to be part of some test case."

The agriculture groups that have been lobbying to have many other
states approve similar laws say the measures are doing just what they
were intended to do: causing people to think twice before they make
damaging comments that are exaggerated or untrue.

"Farmers are tired of being victimized," said Steven L. Kopperud,
senior vice president at the American Feed Industry Association, which
first had the idea for the special laws to protect food producers.

"The laws don't inhibit anyone from stating their opinion," Kopperud
said, "as long as, if they are challenged, they can prove it."



In the early 1990s, the association, which is based in Alexandria,
Va., sent a model law drafted by a Washington law firm to state
agricultural groups, many of which were angry after the 1989 report by
the CBS News program "60 Minutes" about the Alar sprayed on apple
trees. The program cited scientific studies that had concluded that
Alar, used in large quantities, was probably a carcinogen.

After the report, many consumers panicked, schools pulled apples off
lunch menus, and apple prices sank. Even though most apple trees were
not sprayed with Alar, all apple farmers lost money, and some farms
went bankrupt.

Apple farmers in Washington state sued CBS, but a judge dismissed the
case in 1993, saying the farmers had not proved that the report was
false. If the new laws had been on the books, the farmers might have
had an easier time, though that is far from clear.

In statehouses around the country, farmers pointed to the apple
growers' losses when lobbying for the laws. Between 1991 and 1997,
Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana,
Mississippi, North Dakota, Ohio, Oklahoma, South Dakota and Texas
passed different versions of the model law.

State Rep. Robert Turner of Texas, a sheep rancher who helped write
the Texas law, said farmers need protection because often they cannot
sue under normal libel laws that prohibit false, damaging statements
about a product. Under those laws, a company or person must be named
by the party making the false statements to be able to recover
damages.

But if someone, say, questions the safety of melons, Turner said, all
melon farmers, named or not, may lose money. "Individual farmers were
falling through the cracks," he said.

In early May, Turner helped defeat an attempt by media companies and
civil liberties groups to repeal the Texas law. Three lawsuits have
been filed under that law, including the high-profile case against Ms.
Winfrey.


(Begin optional trim)


The cattlemen sued her after her 1996 television show on the possible
threat of "mad cow" disease to the American beef supply. During the
show, after listening to comments by an anti-meat activist, Ms.
Winfrey exclaimed: "It has just stopped me cold from eating another
burger!" The cattlemen said the show caused cattle prices to drop,
costing them millions of dollars.

But during the trial of their suit, a federal judge ruled that live
cattle were not a perishable agricultural product and that the
cattlemen could not sue under the Texas law, known as the False
Disparagement of Perishable Food Products Act of 1995. Instead, the
cattlemen faced the higher burden of proving malice, under regular
product disparagement laws.

In February 1998, a jury in Amarillo, Texas, ruled in Ms. Winfrey's
favor. The cattlemen have appealed. Ms. Winfrey has so far spent more
than $1 million on legal fees, her lawyer said.


(End optional trim)


Some people who have studied the laws say they believe they are having
a greater effect than can readily be seen.

"These laws make people wary about what they say," said Rodney A.
Smolla, a law professor at the University of Richmond who specializes
in First Amendment issues and has criticized the laws. "It is very
hard to document people who don't speak. You're documenting silence."




Some agriculture groups have used the laws to try to quiet food
critics. In 1997, the United Fresh Fruit and Vegetable Association
sent a letter from its law firm to an environmental group in Vermont
called Food and Water that insisted that Food and Water stop
distributing reports questioning the safety of irradiating fruits and
vegetables.

"As you are no doubt aware, nearly 30 state legislatures have passed
or are considering legislation which codifies a cause of action
against persons who disseminate false statements regarding
agricultural products," the letter warned. "We must advise you that
Food and Water's actions will be closely scrutinized."

Thomas E. Stenzel, president of the United Fresh Fruit and Vegetable
Association, said his group did not want to cut off debate but
questioned the accuracy of Food and Water's statements.

And in Ohio, where lawmakers passed a food libel law in 1996, some
people who have spoken out on food issues in the past say they now
hesitate.

"When I give speeches, I look around and think, 'Does someone have a
tape recorder?"' said Laurel Hopwood, a nurse and volunteer at the
Ohio Sierra Club who speaks to groups about genetically engineered
food. "I'm even afraid to say, 'This might be unsafe,"' she said,
"because I'm fearful I could get sued."

Ms. Hopwood said she recently spent hours fretting over the words in a
brochure she wrote about genetically modified food. On April 22, Earth
Day, she asked other volunteers to help her hand out the pamphlet.
"They were afraid," she said. "They kept asking, 'Can we get sued?"'

Copyright 1999 The New York Times Company