Janice A. Oser, Esq.

The documentary Food, Inc., shown on public television and nominated this year for an Oscar, may tell some people more than they want to know about food production in this country. It does tell us something, however, that all of us might want to know about a legal issue, namely, state laws known informally as veggie libel laws. These are food libel or food disparagement laws passed by over a dozen states that make it easier for food producers to sue critics, and in one instance (Colorado’s law) imposes criminal liability for a violation.

In Food, Inc. a young woman describes the death of her two-year-old son from eating hamburgers tainted with E-coli. She speaks of her work trying to get a law passed giving the U.S. Department of Agriculture authority to shut down processing plants that continually produce contaminated meat. When asked, however, about how the loss of her son has affected what her family eats, she says that she cannot say, for fear of being sued under the veggie libel laws.

The Texas veggie libel law, formally, the Texas “False Disparagement of Perishable Food Products Act,” came into national prominence after the Oprah Winfrey Show aired a “Dangerous Food” episode in April 1996. That year, British researchers had discovered that the consumption of beef infected with mad cow disease might cause a fatal brain disease in humans. The “Dangerous Food” episode featured comments by a vegetarian activist, Howard Lyman, who believed that mad cow disease could cause an epidemic in America bigger than the AIDs epidemic, and Oprah said on the show that she was “stopped cold from eating another burger.”

Oprah and Lyman were sued by Texas cattlemen under the Texas veggie libel law. They were also sued under common (judge-made, non-statutory) law for “business disparagement.” The federal district court judge dismissed the Texas veggie libel law complaint on the ground that cattle were not perishable food products, disappointing those who had hoped that the case would be a test case for a constitutional challenge. A jury rejected the cattlemen’s claim of business disparagement.

The district court decision was upheld on appeal. One judge on the appeals court, however, wrote a separate opinion because she believed that the Texas False Disparagement of Perishable Food Products Act did apply to live cattle. Had her view prevailed, it appears that the Texas cattlemen would have been required to persuade the jury only that the comments made on Oprah’s show were not based on reasonable and reliable scientific inquiry, facts, or data.

And had the jury been so persuaded and found against Oprah and Lyman, the constitutionality of the Texas law might have been challenged as an infringement of our First Amendment right to free expression.

As it was, although Oprah prevailed in the suit, defending against it reportedly cost her as much as a million dollars.

And unless and until the state veggie libel laws are challenged successfully on First Amendment grounds, journalists and non-profit organizations that speak out about food safety, and media that publish their stories, will need to meet a strict scientific standard to avoid legal liability. Imagine if criticism had been muzzled in that way about cigarettes.