Gagging on provisions

November 14, 1997

The right to speak out about risky foods is being suppressed in the US by libel laws that threaten people's health and democratic rights. David Bederman reports.

Cultures have always debated what to eat, the rituals of meals and how healthy food should be. How we talk about food has also recently become a subject of legal regulation: a matter of interest to food conglomerates, health advocates legislators and judges. It is not a happy development. Recent events both sides of the Atlantic show that when we use coercive legal restrictions to regulate public debate about food, the result is intolerance and misinformation. The debate becomes as unwholesome as the food it is intended to highlight.

In the United States, the move to restrict public debate about the safety of food can be traced to a 1989 CBS TV news programme, 60 Minutes. This described the use of daminozide (also known as Alar), a chemical sprayed on apples to regulate their growth. Based largely on Intolerable Risk: Pesticides in Our Children's Food, a Natural Resources Defense Council report, the broadcast discussed the potential carcinogenic effects of Alar. Following the item, the Washington apple industry lost millions of dollars as demand for apples plummeted. A group of Washington State apple growers, representing some 4,700 growers, filed suit against CBS.

After years of litigation, a federal appeals court dismissed the action, ruling that, under the common law, in order for the apple growers to establish a claim of "product disparagement" (or trade libel) they must show that CBS disseminated a knowingly false statement and intended such a statement to harm the growers' pecuniary interests. The problem with the case was that it did not fit into the common law's basic model of trade libel suits: whereby one provider of goods claims that a competitor tried to steal business by disseminating false information. When the disseminator is a broadcasting company or an advocate of public health rather than a commercial rival, the rationale for trade libel is less compelling.

The court also found CBS's report balanced and objective. The broadcast did not assert that Alar causes cancer in humans but simply disclosed the results of scientific investigations that raised a concern that Alar could be a carcinogen in animals. The growers were thus obliged to argue that the studies were not reliable indicators of the effects of suspected carcinogens in humans, and that CBS had been irresponsible in disseminating inconclusive evidence. The court, in rejecting the suit, acknowledged that allowing the growers' suit to go forward would risk stifling free speech. Scientific uncertainty over food safety risks should not be made actionable and should be aired in a climate of openness, the court held.

Since then many agricultural businesses have tried to achieve by statute what eluded them under the common law: the creation of a tailor-made cause of action for agricultural disparagement. The Alar case sparked the passage of the first of several statutes across the US. To date, 13 states have passed strikingly similar laws making it an actionable wrong to unjustifiably criticise food produced in those jurisdictions. Comparable laws have been proposed in nearly a dozen other states. The basic thrust of these statutes - known variously as "vegetable disparagement laws", "banana bills", and "food slander laws" - is to make it civilly actionable to disseminate "false" information about food products. What makes information false, and how one goes about proving that, is at the crux of these laws' constitutionality.

The First Amendment to the US constitution provides that "Congress shall make no law ... abridging the freedom of speech". This provision applies to the federal and state governments. The First Amendment alone may not make food libel laws unconstitutional. But there are also other grounds for objection; such as US Supreme Court Justice Oliver Wendell Holmes' metaphor of the "marketplace of ideas". According to Holmes, freedom of speech requires "breathing space" to have fair competition of ideas within a free and open society. Occasionally, the need to protect the competition of ideas will require the courts to "protect some falsehood in order to protect speech that matters". To provide this protection, states may not heavily regulate the marketplace of ideas. Yet these newly enacted agricultural disparagement statues do just that.

Food libel laws violate the First Amendment by making actionable speech that is protected. And they do not provide for "fault", a constitutional necessity in product disparagement cases. Legal actions for product disparagement may not be brought for statements disseminated to further public safety. Statements concerning issues of grave public concern are protected under law. The Supreme Court, in a case called New York Times Co. v. Sullivan considered state defamation laws in the context of the First Amendment right to free speech. The Supreme Court held that a public official must demonstrate "that the (defamatory) statement was made with 'actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not". Three years later, the Supreme Court extended this standard beyond public officials to all "public figures" seeking recovery for libel. Every US journalist knows this is the standard that guides the conduct of investigative reporting.

Food safety is quintessentially a matter of grave public concern. To promote a robust public debate on food safety issues, courts are likely to extend the fullest protection. At a minimum, this will mean that those seeking to sue media outlets for providing controversial information about the safety of foods will have to prove that the statements were made in "reckless disregard" of whether they were true or false, or knowing they were false.

Whether these food libel laws will have the effect of suppressing the debate on food safety remains to be seen. Recently, a report published by the Environmental Working Group, an environmental watchdog organisation, identified 12 of the most popular fruits and vegetables eaten in the US as posing extraordinary risks of pesticide ingestion. The report inspired activists in Arizona to challenge farmers or the state to sue them under Arizona's food libel statute.

Public debate has also raged about the health consequences for humans eating beef from cows stricken by BSE. In May 1996, a Texas cattleman filed the first agricultural disparagement statutory action in the US when he sued Oprah Winfrey, her syndicated TV show and a guest, Howard Lyman, who has claimed that a large portion of American herds were infected with BSE. And while Winfrey allowed an unedited rebuttal to air later on her show, and the Texas Attorney General ostensibly declined the opportunity to sue on behalf of his state, this litigation may well prove to be the first test case of the constitutionality of these laws.

At stake is scientific certainty in an uncertain world. Legal restrictions on statements about food safety are an attempt to regulate the marketplace of ideas in that grey area where scientific investigation, economic protection and public safety overlap. The underlying thrust of food libel statutes is to regulate speech by encouraging certain exchanges and punishing others. Such an approach is profoundly misguided. But it would be folly to ignore the powerful interests that support it.

The various businesses that support and distribute farm products are big business. Farmers, growers and herders have always wielded disproportionate political power but now that power is combined with corporate muscle. In an integrated global economy, dissemination of information can produce quick shifts in the market. Some of these are unpredictable and can hardly be subject to legal remedies. But many in the agricultural community believe speculation about food safety, if prematurely disclosed to the public, can have unwarranted effects on demand and prices, and should be controlled. And if such information cannot be suppressed, the next best thing is to punish civilly the authors of damaging disclosures.

The effort to suppress free speech about food has become part of a larger backlash against science. The campaign against "junk science" has become a rallying cry for those who oppose government funding for science. Fetal tissue research, for example, is immoral. Science has been dichotomised into "good" and "bad", "responsible" and "irresponsible".

The legal regulation of food safety speech means that the courts will decide what is responsible science and what are justifiable disclosures of food safety concerns to the public. An adversarial system of justice culminating in a decision by a judge or jury is a lousy way to seek scientific truth and secure public health. Moreover, the two mechanisms that society has come to rely on to assess risks in a progressively more complicated world - peer review among scientists and robust public debate - will no longer be available. If food libel laws succeed in punishing disclosures that are later proved to be wrong, scientists will alter their research agenda and the media will avoid controversial food issues.

Imagine a scientist who hypothesised ten years ago that there was a link between eating meat from BSE-infected cows and contracting Creutzfeldt-Jakob disease. A decade later, such a conclusion would be largely vindicated. But at the time it was made, such a deduction would have been at the leading edge of scientific inquiry. It would also have been quite actionable under the US food libel laws and under the common law of libel in the UK.

Freedom of speech is always precious and becomes ever more so as agricultural industries use previously untried methods, from exotic pesticides and growth hormones to genetic engineering on our food supply. Scientists and consumer advocates must be able to express their legitimate, even if unproven, concerns. Food libel quells those voices. Any restriction on free speech about the quality and safety of our food is dangerous, unconstitutional, and undemocratic.

David Bederman is professor of law at Emory University, Atlanta.

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