SPEAKING FREELY ABOUT FOOD
“It would be difficult to conceive of any topic of discussion that could be of greater concern and interest to all Americans than the safety of the food that they eat,” wrote District Judge Mary Lou Robinson in her unpublished order in Texas Beef Group v. Oprah Winfrey, a test-case for Texas’ then-newly enacted food disparagement statute. In response to hearing about that Mad Cow disease is caused by feeding cows to cows during a live broadcast of her show, Oprah “disparaged” the beef industry by saying “It has just stopped me cold from eating another burger! I’m stopped!”
Angry cattle men sued. Oprah had to defend herself in an expensive libel action. It cost her $1 million, and significantly, she won. But just as significantly, she could afford to win. Currently in Texas and 12 other states, it is unlawful to say “disparaging” things about agricultural products. A list of these laws appears here: http://www.cspinet.org/foodspeak/laws/existlaw.htm. Since media crosses state lines so easily, these laws can be used to intimidate people anywhere in the country. The laws vary slightly from state to state, but all clearly violate the First Amendment of the Constitution; so far no court has been brave enough to step into the ring, take on agribusiness and say so.
Even though food disparagement cases rarely see the florescent lights of a courtroom – or actually because of this – the corporate interests responsible for getting these laws passed are very confident that they are working. Animal Feed Industry Foundation (AFIA), a nonprofit trade group funded by Purina, Cargill, assorted chemical and pesticide companies, and various agriculture associations, engaged the help of a Washington D.C.-based lawfirm, drafted model legislation and sent it to each state legislature around the country to be lobbied into law. Steve Kupperud, AFIA executive, was frank about the legislation’s goals: “I think that to the degree that the mere presence of these laws has caused activists to think twice, then these laws have already accomplished what they have set out to do.” This means, as long as the laws are out there, and people are afraid of them, then they are “working” – that is, they are limiting what gets said about the safety and nutrition of food products in the US.
Looking for the chilling effects of these laws is no easy task, but enough anecdotes have emerged to suggest that it is fear of litigation that keeps critics of agribusiness practices quiet. In the words of David Bederman, an attorney involved in an unsuccessful facial challenge  to a newly enacted statute in Georgia in 1995,
“Food libel and agricultural disparagement statutes represent a legal attempt to insulate an economic sector from criticism and also reflect a curious mixture of interest-group politics and industry protectionism. In this respect, they may be strikingly successful in chilling the speech of anyone concerned about (the safety of) the food we eat. The freedom of speech, always precious, becomes ever more so as the agricultural industries use previously untried methods as varied as exotic pesticides, growth hormones, radiation, and genetic engineering on our food supply. Scientists and consumer advocates must be able to express their legitimate, even if unproven, concerns. Food libel quells just that type of speech. At bottom, any restriction on speech about the quality and safety of our food is dangerous, unconstitutional, and undemocratic.“
Food disparagement laws are potentially interfering with the public’s receipt of information about outbreaks of contaminants such as E. coli, semolina, cyclospora and hepatitus in food, because the laws prompt health officials to wait for outbreaks to be proven, instead of issuing preemptive warnings, for fear of financial liability. They are certainly one of the reasons so little criticism of dangerous pesticide practices filters into the mainstream.
SI is calling for the public’s help in tracking down food disparagement intimidation efforts. We have collected some examples from a decade ago below. It is clear that threats like these continue to limit the public conversation about food product safety. Have you or someone you know received similar threats? Our plea for your assistance appears below.
- Food & Water Watch, received a letter from a lawyer for the United Fresh Fruit and Vegetable Association, stating that the group should cease distribution of reports about the safety of irradiating fruits and vegetables. 
- Two Fox News reporters had a story about bovine growth hormone,  The Mystery In Your Milk, suppressed and edited in response to a letter from Monsanto that included a threat to sue for defamation. When the reporters protested to having their story undergo 38 re-writes by Fox’s lawyers, they were fired. The reporters sued, bringing the first ever whistleblower lawsuit by journalists against a news corporation. The lawsuit took eight years and cost hundreds of thousands of dollars, but the reporters won. 
- Against the Grain: Biotechnology and the Corporate Takeover of Your Food, a book by Dr. Marc Lappé and Britt Bailey, was originally supposed to be published by Vital Health. But the company canceled publication after receiving a threatening letter from a Monsanto lawyer, who said he believed the manuscript contained false statements about Monsanto’s biggest money-maker, the herbicide RoundUp.
- Information about growth hormones in dairy cows was deleted from a manuscript written by research scientist J. Robert Hatherill.
- The National Fisheries Institute warned that public activism designed to protect swordfish would be met with a food disparagement lawsuit.
- A small book publisher in Portland reported that she felt threatened by a telephone call she received from a representative of the Pet Food Institute regarding a forthcoming book she was publishing about meat products. The caller indicated that inaccuracies in the book could become the subject of legal action. The book in question, Food Pets Die For, addressed the use of dead animals in pet food. 
- The Ecologist magazine published a special issue, “The Monsanto Files,” which took a critical look at the chemical/biotechnology giant. But The Ecologist’s printer, Penwells of Saltash Cornwall – with whom The Ecologist had worked for 29 years – destroyed the 14,000-copy print run without even notifying the magazine. Penwells refused to comment on its decision and Monsanto denied any responsibility for the action, prompting The Ecologist’s editor, Zac Goldsmith, to say, “The fact that Monsanto had nothing to do with the decision to pulp is, if anything, more scary than if they had made some kind of legal threat. It goes to show what a powerful force a reputation can be.” 
SI is seeking more recent evidence of these unconstitutional laws at work; as non-millionaire citizens, our one recourse is to track these coercive efforts and challenge them by exposing the tactics to the broader public. Have you or anyone you know been intimidated into silence, or otherwise threatened? We ask you please send in copies of any threats of litigation using food disparagement laws as their premise. We will keep your confidence (some of us are nearly lawyers and understand this stuff). Please email your anecdotes and pdf copies of any written threats to paulaznyc [at] gmail [dot] com – or ask for a real address to send photocopies.
 Ronald K.L. Collins, Book Publishing & Food Libel Laws, Nat. L. J. (Jun. 22, 1998)(citing N.D. Tex., CV-208-J). (back)
 Thomas Goetz, Venerable Talk Show Host Gets First Taste of Food Disparagement Laws, Village Voice April 29, 1997, 39, available athttp://www.organicconsumers.org/disparg.html [herein Village Voice]; Ellen Gay Jones, Forbidden Fruit: Talking About Pesticides and Food Safety in the Era of Agricultural Product Disparagement Laws, 66 Brook. L. Rev. 823, 832 (2001); Colleen K. Lynch, Disregarding the Marketplace of Ideas: A Constitutional Analysis of Agricultural Disparagement Statutes, 18 J.L. & Com. 167, 178 (1998)(citing Hey, Your Zucchini Wears Army Boots, Time Magazine, Aug. 4, 1997, at 17); American Feed Industry Association Website, http://www.afia.org/afia/home.aspx (“[In the 1990s, a]s members’ needs expanded, AFIA stayed on track with its historic focus on feed issues: feed research funding, model feed labeling rules, Good Manufacturing Practices regulations, state feed laws, nutrient requirements for swine, the Feed Manufacturing Short Course at Kansas State University, regional production schools and more. Its activities also reflected a broadening focus: fast-track authority for U.S. trade agreements, nutrient management programs for animal agriculture, national food regulation, food disparagement legislation, Occupational Safety and Health Administration and Environmental Protection Agency issues and responses to national media inquiries tied to food issues and bovine spongiform encephalopathy.”)(emphasis added). (back)
 David. J. Bederman, Food Libel: Litigating Scientific Uncertainty In A Constitutional Twilight Zone, 10 DePaul Bus. L. J. 191, 231 (1998). (back)
 See Joe Saltzman, Freedom of speech, hurt feelings, and economic loss – libel laws and food safety, USA Today, Nov. 1997, available athttp://findarticles.com/p/articles/mi_m1272/is_n2630_v126/ai_20004054/. (back)
 Id. (back)
 Bovine growth hormone increases the risks of reduced pregnancy rates, ovarian cysts and uterine disorders, decreased lengths of gestation periods, lower birth weight of calves, retained placentas and twinning rates, may cause increased bovine body temperatures, indigestion, bloating, diarrhea, enlarged hocks, enlarged lesions, and injection site swellings. Stauber v. Shalala, 895 F. Supp. 1178, 1183 (W.D. Wis. 1995). It also increases milk production and is marketed to dairy farmers as a supplement to increase the milk production of a herd. (back)
 See Jane Akre & Steve Wilson, Modern Media’s Environmental Coverage: What We Don’t Know Can Hurt Us, 33 B.C. Envtl. Aff. L. Rev. 551, 553-4 (2006); for the substance of the report, go to http://www.foxbghsuit.com./ (back)
 Id. (back)
 Id. (back)
 Laura Orlando, Industry Attacks on Dissent: From Rachel Carson to Oprah, Dollars & Sense (Mar. 2, 2002), available athttp://www.dollarsandsense.org/archives/2002/0302orlando.html. (back)
 Id. Common Courage Press picked up the book and published it in 1998. (back)
 Ellen Gay Jones, Forbidden Fruit: Talking About Pesticides and Food Safety in the Era of Agricultural Product Disparagement Laws, 66 Brook. L. Rev. 823, 857(2001). (back)
 Id. (back)
 Id. (back)
 id. (back)
 Id.; Ann N. Martin, Food Pets Die For (1997). (back)
 Id. The magazine was able to line up another printer for the Monsanto issue. (back)