13. Gag Me with a Food Disparagement Law

Sources: UTNE READER Date: January 2, 1996 Title: "Watch Your Mouth" Author: Helen Cordes; WASHINGTON FREE PRESS Date: April 5, 1996, Title: "Lettuce Libel," Author: Eric Nelson; COLUMBIA JOURNALISM REVIEW, Date: September/October 1996, Title: "The Alar `Scare' Was For Real," Author: Elliott Negin; USA TODAY, Date: March 27, 1996, Title: "Warning: You can be sued for insulting vegetables: Industry turns to laws on `food disparagement'," Author: Ann Oldenburg

SSU Censored Researchers: Carli Dolieslager, Amber Knight

Agribusiness groups including the American Farm Bureau Federation have been, and still are, lobbying for legislation which would make it illegal for anyone to make a claim that a food is unsafe for human consumption without having "sound" scientific evidence to back it up. These gag laws are referred to as "banana bills" or "agricultural disparagement" laws and would enable companies producing perishable goods, such as meat, produce, medicine, and tobacco, to sue anyone who makes a claim that their product -- or anything used to process or preserve their product -- is unsafe. But who determines what is "sound science?" Thalidomide and DDT were once endorsed by the "sound" scientific community, but later, after links to birth defects and cancers were established, they were banned.

The birth of disparagement laws occurred in 1989 when the legendary CBS news magazine show 60 Minutes publicized a Natural Resources Defense Council report charging that the chemical Alar, which enhances the appearance of apples, caused cancer. Apples, apple juice, and applesauce were immediately removed from grocery store shelves, resulting in a loss of $130 million to Washington apple growers. In response, the Washington growers sued the television show for $250 million -- insisting that their product had been falsely disparaged. Supporters of the agricultural disparagement laws aim to make products easier to market as well as to avoid significant financial losses.

These laws are a direct threat to the free speech rights granted under the First Amendment. Under such food disparage-ment laws, mass media and individual citizens would lose their right to inform -- and to be informed. If you're sued for disparagement and you lose, the punishment in Idaho is typical: you have to pay the plaintiff for recovery of all and any financial loss. In Colorado, you could also go to prison for a year. Perversely, such laws cannot be challenged until someone is charged with violating it. "It's terrifying," says David Bederman, an Emory University law professor who tried unsuccessfully to challenge Georgia's disparagement law. The judge ruled that he couldn't dispute the law until he had a real dispute. But a real dispute could have far-reaching implications.

Currently, there are twelve states that have passed these laws and thirteen that have legislation pending. Critics charge that scientists might not study the effects of pesticides on foods -- and that journalists and activists might not report on or discuss such concerns -- thus leaving consumers in the dark.

COMMENTS: Helen Cordes, author of the article, "Watch Your Mouth," says the topic had received little attention when she began tracking it in late 1994. When she pitched it to Utne Reader in early 1995, she had found only "a few obscure references" buried in the back of Texas daily newspapers. "By the time Utne Reader gave me the goahead," Cordes notes, "I had heard nothing about it on network TV, and clips came only from environmental publications and one journalism magazine.

"Food safety is clearly an issue that affects everyone who eats, which is a pretty inclusive grouping. While I think that some people are generally aware that their food is grown using pesticides, preservatives, and genetically-altered genes, I don't think most realize how dependent the food production system has become on these methods. If people realized (by reading/hearing about it) how `bad news' about unsafe food is squelched, they would perhaps be moved to make different food choices, such as buying organic foods.

"The big food companies, which spend a lot of money advertising in mainstream media, want to keep this story quiet, along with agribusiness groups. Media outlets which profit from food ads don't want to alienate those accounts.

"I believe there is good news and bad news on the topic of bringing people's attention to food safety issues. First, the bad news -- I think there's a trend among many journalists/editors to downplay food safety concerns, as witnessed by the back lash against the 'food police' who critique the high fat in Americans' diets a la movie popcorn and fast food. I fear that food, raised with topical pesticides, preservatives, or genetically altered methods will get the same 'what's the big deal?' treatment." [Cordes is referring to the Washington D.C.-based Center for Science in the Public Interest.]

The good news, says Cordes, is that "more people are voting with their feet by walking to the organic food section. More food producers will follow the money, and perhaps ultimately the same companies now decrying any criticism of conventional food will be singing the praises of organic food."

Eric Nelson, award-winning writer with the Washington Free Press and author of the article, "Lettuce Libel," says he saw no TV coverage of food disparagement laws, nor is he aware of coverage by any newsweeklies. "National papers, including USA Today and Washington Post did some coverage, but mainstream newspaper stories about state agricultural disparagement laws were relegated to the 'Style' or 'Home' sections. Most stories (mine included) attempted to exploit the humorous angle of `fruit slander' or some other stupid pun.

Nelson believes "the general public needs to know that the food supply is not safe because of contamination and pesticides. Watchdog organizations such as the Pure Food Campaign and the Environmental Working Group are doing their best to raise this issue in the public and in the media. However, the threat of lawsuits against these organizations -- even if based on unconstitutional disparagement laws-is an attempt to squelch public debate about the safety of what we eat. The mere threat of a lawsuit for speaking the truth will chill public debate about food safety, will diminish our First Amendment rights, and could endanger the survival of public interest groups if they are sued under these laws.

"The public needs to know that the vast majority of these laws would not pass constitutional muster because they effectively shift the burden of proof from the plaintiff to the defendant. Thus, an organization sued under many of these laws faces the presumption that its statements are false and 'not based on reliable scientific data.' Plus, the plaintiff in these actions need not show actual damages resulting from the statement, as is the case with most libel actions. In fact, the Pure Food Campaign notes that industry organizations have advised their members not to sue public interest groups under these laws, lest the laws themselves be found unconstitutional. Thus, the laws are meant to sit on the books and chill public speech by their mere existence.

"The public needs to know what industry organizations are sponsoring these food disparagement laws: the Produce Marketing Association is one such group. Another is the Animal Industry Foundation (AIF), a front group composed of meat producers, including the American Farm Bureau Federation, American Feed Industry Association, American Sheep Industry, American Society of Animal Science, American Veal Association, National Broiler Council, National Cattlemen's Association, National Milk Producers Federation, National Pork Producers Council, National Turkey Federation, Southeastern Poultry & Egg Association, and United Egg Producers. These groups have even drafted a `model disparagement bill' that states can use to draft their own laws."

Elliott Negin, author of the Columbia Journalism Review article, "The Alar 'Scare' Was For Real," says there are several aspects of this story the national media missed. "Although the news media made much of a lawsuit filed by Washington state apple growers against CBS' 60 Minutes for a critical story the show did on Alar, there was next to no follow-up when the courts vindicated 60 Minutes. Nor have the national media paid attention to the 'agricultural disparagement' laws that have been passed in 12 states. These laws will have a chilling effect on journalists who write about food safety.

"Over the last seven years the news media have been citing the so-called Alar 'scare' as an example of misguided gov-ernment environmental regulation. This adds to the false perception that the government is too zealous in protecting the environment and is stifling the corporate sector by burdening it with regulations.

"The food processing and chemical industries have made the Alar controversy their Alamo. Since Alar was taken off the market, the two industries, working with high-priced public relations firms, have mounted disinformation campaigns against legitimate studies on the effect of pesticide-treated food on children. If these industries were forced to cut back their use of dangerous pesticides to better protect the public, I assume they fear their profits would suffer. Meanwhile farm workers and the public will continue to be exposed."

Negin feels that since his piece appeared in Columbia Journalism Review, his "fellow journalists should now have a better understanding of how they've blown this story." According to Negin, The New Republic and The Nation rejected query letters for the article before it appeared in CJR. He says Environmental Media Services, a non-profit public relations firm, has mailed the article to hundreds of journalists nationwide.