FOOD POLITICS

Foresight on Food Politics: The pink slime trial ends, and nobody clearly wins

In an abrubt and surprising late June development, South Dakota meat processor Beef Products Inc. and the ABC television network agreed to settle out of court a $1.9 billion lawsuit against ABC News and correspondent Jim Avila over the network's reporting on BPI's product, lean finely textured ground beef.

BPI sued ABC in 2012, saying its March and April news coverage that year had defamed the company and its product, which ABC called "pink slime," misleading consumers into believing it was unsafe and not really beef. BPI claimed that because some retail chains announced they would stop carrying beef containing its product, which is made by recovering leftover beef from processing scraps, treating it with ammonia gas to kill bacteria and then mixing it into ground beef to extend its volume and lean-to-fat ratio, sales dropped by more than half. BPI was forced to shutter its Iowa, Kansas and Texas plants and lay off more than 700 employees.

Terms of the settlement are confidential and thus not open to Farmer Goes to Market, but it's safe to assume based on statements made by BPI and its lawyers shortly after the settlement that BPI was satisfied with the outcome and felt justified in its pursuit. BPI's written statement said, "While this was not an easy road to travel, it was necessary to begin rectifying the harm we suffered as a result of what we believed to be biased and baseless reporting in 2012."

For its part, ABC has been equally vague in its statements, saying the resolution was "amicable."

"Although we have concluded that continued litigation of this case in not in the company's interests," a representative for the Disney-owned network said, "we remain committed to the vigorous pursuit of truth and the consumer's right to know about the products they purchase."

So it appears that as the dust settles around the high-profile case of "agricultural disparagement," both BPI and ABC managed to get some part of what they wanted, while losing the whole. Meanwhile, the biggest loser of all may be your shoppers. While advocates for BPI and high-tech agriculture it represents may have hoped for a verdict against ABC that sent a strong message to those who routinely defame agriculture and its practices as a means of self-promotion, the reality is the secret, no-fault settlement fails an important chance to test the underlying foundations of the case.

Because the case was settled and its outcome sealed from public view, a rare opportunity to test the limits of both a free press and modern agricultural disparagement laws slipped though the public's grasp, suggests environmentalist attorney Nicole Sasaki. Writing in the student environmental law review of Pace University in summer 2014, Sasaki argued the BPI/ABC case presented an ideal test case to bring to a head unanswered questions about the constitutionality of ag disparagement laws like South Dakota's.

Thirteen states passed such "veggie libel" laws between 1991 and 1997. A response by agribusiness to what it saw as unfair and purposefully inflammatory attacks on the safety of food and agriculture that started when CBS' 60 Minutes criticized apple growers for using the pesticide alar in 1991, the laws were designed to get around hurdles to winning lawsuits against media and others who scared the public out of buying agricultural products.

Few actions have been pursued under such disparagement statutes in the intervening years, and no disparagement law has been reviewed for constitutionality. Sasaki and others hoped that by taking a case to judgement under South Dakota's law, higher courts would finally be forced to address whether agricultural disparagement laws are legitimate constitutional protection of farmers from libel, or unconstitutional restrictions on free speech.

She believes the South Dakota law would fail such a first-amendment test. Like several other state ag disparagement laws, it is too general in who it permits to be protected. In long-established precedent, the Supreme Court has ruled that in order to claim damage from libel by a media outlet, an injured person must prove that the libelous reporting was made specifically about and concerning him. Simply being harmed as an innocent bystander is not sufficient to recover damage.

It's that same test that led a Washington court to dismiss the Washington State apple growers’ class action suit against the Natural Resources Defense Council and its PR agency for damages apple growers had sustained due to the 1991 60 Minutes Alar segment. Because it believed the 60 Minutes segment criticized all apple growers and not simply the Washington growers who brought the suit, the court found it could not hold that any defamation was specifically directed at the plaintiffs. Sasaki believes the same would be true of the BPI case. Other critics have argued many of the state ag disparagement laws, in trying to permit farmers as an all-encompassing party to sue, are similarly too broad, and thus an unconstitutional restriction on the basic right of a free press.

"ABC News responded to consumer concern regarding the labeling of LFTB as an ingredient in ground beef," Sasaki writes. "The public wanted to know more about LFTB, and ABC News rose to the occasion, making a substantial contribution to the market place of ideas that was well within the protections of the First Amendment."

Whether ABC succeeded or failed in that task can be debated, but until now, "biased and baseless reporting," in the words of BPI, may be bad journalism, but it's not defamation as the high court defines it.

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