Farmersí Right To Sue Grows,

Raising Debate on Food Safety

By MELODY PETERSEN

The New York Times

(June 1, 1999) -- 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.

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.

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?"'

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