Litigation by the Food Industry Against Individuals

A rare type of litigation occurs when food companies sue individual persons. This is not common, but two noteworthy types of cases are explored here, both in the context of defamation. Defamation is the intentional false communication of information that harms a person or entity’s reputation. This can be accomplished through spoken words, called slander, or written words, called libel. If the statement was truthful, it does not qualify as defamatory.

Several states have passed controversial laws that seek to shield the food and agricultural industry from negative public comments. The laws may target defamatory statements about the industry or whistle-blowing, which is the act of exposing misconduct or illegal activity occurring in an organization. These laws are sometimes called Veggie Libel, Food Libel, anti-whistleblower, or most commonly, “Ag-Gag” laws. One such law was the subject of a lawsuit by the cattle industry against the popular talk show host Oprah Winfrey and her guest.

In 1996, the British Ministry of Health announced that scientists had linked the consumption of beef infected with Bovine Spongiform Encephalopathy (BSE) with a fatal disease that affects the human brain, Creutzfeldt-Jakob Disease. BSE is widely referred to as “Mad Cow Disease,” and is a deadly, degenerative brain condition in cattle that is likely to arise when cattle are fed contaminated ruminant-derived meat rendered from cattle and sheep. Oprah Winfrey hosted an episode of her talk show entitled, “Dangerous Food” to discuss Mad Cow Disease and whether it could occur in the United States.^[1] Oprah famously stated on the episode: “It has just stopped me cold from eating another burger! I’m stopped!”^[2] One of the show’s guests compared BSE to HIV-AIDS and opined that the government needed to institute a mandatory ban on ruminant-to-ruminant feeding (which it did months later). After the airing of the show, the cattle market in Texas and nationally “dropped drastically.”^[3]

Several Texas cattle ranchers sued Oprah Winfrey, her production company, and her guest alleging violation of the Texas False Disparagement of Perishable Food Products Act. Under this Act, “a person may be held liable for damages sustained by the producer of a perishable food product if that person knowingly disseminates false information to the public stating or implying that the producer’s product is not safe for public consumption.”^[4] The Fifth Circuit Court of Appeals found that the statements on the show might have been “hyperbolic” and the show “melodramatized” but knowingly false information was not disseminated.^[5] The case was dismissed.

The Texas legislature had passed the False Disparagement of Perishable Food Products Act in response to a segment that aired on the television show 60 Minutes about a carcinogenetic chemical sprayed on apples.^[6] Apple sales dropped significantly and apple growers sued the show for the common law tort of product disparagement, also known as trade libel.^[7] The Ninth Circuit found the apple growers were not able to prove the falsity of the statements. Unlike the Texas law, several state legislatures have proposed bills or passed laws specifically to address undercover reporting of questionable animal husbandry practices at factory farms. These are the subject of litigation against the government, discussed below.

The second defamation-related episode actually never made it to court. In 2013, a nutrition group sent a newsletter to elementary school children and their parents suggesting that children need to reduce consumption of sugary beverages including energy drinks. In addition, it warned of the dangers of young children consuming energy drinks.^[8] Monster Beverage Company threatened to sue the nutritionist who sent the letter unless she retracted the statements.^[8] Instead of heeding this scare tactic, the nutritionist contacted her United States Senator, Richard Blumenthal of Connecticut, an outspoken critic of energy drinks (and the former attorney general of the state). He urged Monster to apologize to the nutritionist.^[8] No further action is recorded to have occurred and the nutritionist expanded her message to include older children and teens.^{[11] [12] [13]} The lesson here is that litigation can be used as a scare tactic. This can be especially problematic when a profitable corporation threatens to sue an individual because the costs associated with defending a lawsuit can be quite high and potentially damaging for a noncorporate entity.

• [1] Engler v. Oprah Winfrey, 201 F.3d 680 (5th Cir. 2000).
• [2] S.H. Verhovek. Talk of the Town: Burgers v. Oprah. The New York Times. January 21, 1998.
• [3] Engler v. Oprah Winfrey, 201 F.3d 680, 683 (5th Cir. 2000).
• [4] Engler v. Oprah Winfrey, 201 F.3d 680, 687 (5th Cir. 2000).
• [5] Engler v. Oprah Winfrey, 201 F.3d 680, 687 (5th Cir. 2000).at 688-689.
• [6] Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th Cir 1995).
• [7] Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th Cir 1995).at 820.
• [8] B. Meier. In a New Aisle, Energy Drinks Sidestep Some Rules. The New York Times. March19, 2013.
• [9] B. Meier. In a New Aisle, Energy Drinks Sidestep Some Rules. The New York Times. March19, 2013.
• [10] B. Meier. In a New Aisle, Energy Drinks Sidestep Some Rules. The New York Times. March19, 2013.
• [11] G. B. Hladky. Monster Beverage Now In Legal War with San Francisco, While ConnecticutNutritionist Keeps Calling for Ban on Energy Drink Sales to Kids. Los Angeles Times. May 6, 2013.
• [12] Cohen v. Virginia, 19 U.S. 264 (1821); United States v. McLemore, 45 U.S. 286 (1846).
• [13] U.S. Constitution Amendment XI.