If you think Oprah Winfrey’s stunning victory over cattlemen on their home turf puts an end to those silly “veggie libel” laws, think again.
Winfrey couldn’t have said it better when she rejoiced “Free speech not only lives, it rocks!”
But the agricultural product disparagement laws, popularly called veggie libel laws, also live on, but not because they deserve to.
For example, a group of Texas ranchers still is suing the makers of a 1997 Honda television commercial for making fun of emus.
The emu ranchers sued for a humorous 30-second spot that called emus “the pork of the future.” That line, the ranchers claim, caused the bottom to fall out of the emu market, which was pretty soft to begin with.
Ah, well, some people just can’t take a joke.
Since the meat of the ostrichlike bird was being marketed for its fat-free tastiness in much the way that pork is marketed, the remark was hardly untrue. Yet, as one lawyer for the ranchers put it, that’s damaging anyway because “to Moslems and fundamentalist Christians, pork is unsafe for consumption.”
Hmmmm . . . he’d better watch out. He might get sued by the pork producers for that remark.
While we’re waiting to find out, we can consider the case of AgriGeneral. The big Ohio egg producer is countersuing the Ohio Public Interest Research Group under the state’s 1996 veggie libel law after the consumer group sued the egg producer for allegedly repackaging old eggs and selling them as new.
Yet, even though it was specifically named, traditional business libel law was not enough for AgriGeneral. The company turned instead to the state’s business disparagement law, which has a lower burden of proof for plaintiffs.
Veggie libel laws have been passed by 13 states and many states are considering their own versions. Each state law is a tribute to the political clout of the agriculture industry. Unfortunately, each also threatens to chill free speech and legitimate journalistic investigations concerning public health and food safety.
Even after Winfrey’s victory, critics, consumer advocates and journalists who investigate food safety have good reason to think twice before they say anything uncomplimentary about food in states where these pernicious laws are in effect, especially if they don’t have Oprah’s star power or millions.
By contrast, traditional business libel laws, also known as “trade libel” and “commercial disparagement” laws, offer a public service. In theory, they protect companies and their workers from libelous attacks made by competitors or others with a malicious ax to grind.
Food producers began pushing for veggie libel laws in 1991 after traditional libel laws failed to help Washington state apple growers win a lawsuit against CBS’ “60 Minutes” for a broadcast on the growth regulator Alar.
In traditional business libel cases, the company must prove the defendant made statements about its products or services that were false and malicious. Veggie libel laws expand libel protections to cover not only a specific company but an entire industry. Many also shift the burden of proof as to truthfulness from the plaintiff to the defendant.
In that way, a group of Texas cattlemen Winfrey had not named were able to bring her to court in Amarillo for airing a program in April 1996, in which she responded to an anti-meat advocate’s assertions by saying, “It has just stopped me cold from eating another burger! I’m stopped!”
But a constitutional test of veggie libel was sidestepped in this case. Judge Mary Lou Robinson of Federal District Court ruled that the case could not proceed under the state’s 1995 veggie libel law because she believed beef-on-the-hoof was not a “perishable product” as the law requires or that “knowingly false” statements had been made.
As a result, the cattlemen had to rely on standard business defamation laws, where they had a bigger burden of proof. As far as the jury was concerned, they failed to meet the burden.
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Perhaps the Texas emu ranchers will have better luck.
If so, the public will be the loser.