Consumer Reporting in the United States

Oprah Winfrey’s battle with Texas cattle ranchers shed light on an issue that previously was the butt of jokes among journalists and lawyers. As the case progressed, however, it became increasingly clear that these “veggie libel” laws are no laughing matter. Granted, there is humor in the idea of litigating over the bruised reputation of a banana. What is not humorous is the specter of costly libel litigation for those who report on food or food safety. Such laws threaten the dissemination of valuable product information that could, in some cases, save lives. And that’s no laughing matter. What is more, it is also abundantly clear that politicians, eager to please their agricultural constituencies, are taking these measures seriously and expeditiously to the floor of their respective statehouses.

So far, the states with such laws are Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota, and Texas. ¹ Other states, including California and Michigan, are currently considering such legislation. Meanwhile, lawsuits are slowly working their way through the judicial system as organized opposition to food disparagement laws mounts.

The problem started, however, in the apple-growing Pacific Northwest in the late 1980s. There, scientists found that a chemical sprayed on apples called Alar contained cancer-causing agents that were especially harmful to children. Counterevidence also existed, but once the stories on the danger of Alar hit the news, the apple industry suffered. Apple growers reported immense profit losses as a result of the adverse publicity. They tried to sue—especially CBS for a segment on 60 Minutes—but their efforts were thwarted by the common law of product disparagement, which typically requires plaintiffs to prove not only falsity but also a direct connection from the publication to the loss of profit. ²

In the following years, agribusiness lobbied in numerous states to protect growers and producers from a similar fate. Throughout the nation, lawmakers began to explore measures that would stifle or at least quiet some of the public criticism over certain perishable foods. Pesticide manufacturers liked the idea as much as the growers did. Stories of tainted fruit can turn the spotlight on chemical companies as well. So together their lobbies helped to enact these bills. With “veggie libel” laws, the food industries hope to roll back some of the protections otherwise enjoyed by the news media and consumer groups that publish disparaging data about agricultural products. In states with such laws, consumer groups and reporters are struggling to do their jobs against the threat of burdensome litigation.

Dying Eggs and Ruffled Feathers

Surely, the cattle industry’s beef with Oprah Winfrey has been the most publicized of the “veggie libel” matters. Upon hearing the perils of mad-cow disease, the popular talk-show host forever swore off cheeseburgers before her audience of millions. The cattle ranchers claimed her televised epiphany caused beef prices to plummet. After much legal wrangling, Oprah and her codefendant, vegetarian activist Howard Lyman, prevailed (thanks to some nearly $1 million in attorneys’ fees) at the trial level. The case is now before a federal appeals court, while a second, nearly identical food disparagement action has been brought against Oprah and Lyman in a Texas state court.

Incredible as the Oprah case is, there are lesser-known cases that better illustrate the severity of the threat posed by these laws to First Amendment freedoms.

Consider, for example, the Ohio Public Interest Research Group (PIRG). This organization, headed by Amy Simpson, took one of the nation’s largest egg producers to task for rewashing old eggs, mixing them with new ones (and a new expiration date), and recycling them onto supermarket shelves. What prompted the trouble was Simpson’s statement, “We have no idea how many, if any, have been made ill from these eggs.” Buckeye Eggs, of Croton, Ohio, took Amy Simpson and her group to court, aided by Ohio’s statute, which provides a civil cause of action for “any producer of perishable agricultural or aquacultural food products that suffers damage as a result of another person’s disparagement” of the product. ³

The...