The Ecologist, Vol . 27, No . 6, November/December 1997 EDITORIAL S
claims that his company, Cactus Feeders, lost $7 million as a result of the Winfrey show.
Since the filing of that case, the US Food and Drug Administration has drafted a rule which would at least partially ban the feeding of cows to other cows.
"Agricultural disparagement statutes represent a legislative attempt to insulate an economic sector from criticism," write David Bederman, Scott Christensen and Scott Quesenberry i n the Winter 1997 issue o f the Harvard Journal on Legislation. "They may be strikingly successful i n chilling the speech of anyone concerned about the food we eat. [Their] approach is not only profoundly misguided as a matter of policy, but also flagrantly unconstitutional as a matter of law."
Of particular concern, as Bederman and his colleagues point out, are the laws' intentionally vague language on what constitutes "false information". False information is generally defined as information that is not based on reliable scientific facts or data. But "what is reliable and scientific is unclear."
The US Supreme Court has already ruled that speech regarding issues o f grave public concern is protected. And i n the US, suits claiming disparagement must prove that a party made intentionally malicious statements, or recklessly disregarded the truth. However, the disparagement laws do not require a plaintiff to prove that the defendant's intent was actually malicious. And according to Bederman, this renders them unconstitutional.
The laws also require defendants to prove that their statements on food safety are based on "reasonable and reli able scientific inquiry, facts, or data." I n other words, the burden o f proof has shifted from the plaintiff, as i t is i n other US lawsuits, to the defendant.
"There is a strong argument that this liability is an unconstitutional infringement on free speech," says former Pure Food Campaign Staff Attorney Ted Waugh. "Moreover, what information qualifies as 'reliable' or 'reasonable' is completely up for debate. Must a source be published or subjected to peer review? Must there be secondary sources that reinforce the fact? What about personal observations and opin
ions?" As experience has shown us, these qualities can all too often be dismissed as 'anecdotal', particularly when they threaten the interests o f big business.
There is a long history of the scientific Establishment declaring the safety of various chemicals and foods, only to be proven wrong. For example, DDT, DES and Thalidomide were roundly endorsed by scientists and government officials, and only later were found to cause birth defects and cancer. I t is likely that Rachel Carson's classic 1962
There is a long history of the scientific Establishment declaring the safety of various chemicals and foods, only to be proven wrong For example, DDT, DES and Thalidomide were roundly endorsed by scientists and government officials,
and only later were found to cause birth defects and cancer.
book, Silent Spring, would be attacked by industry today as a violation o f food disparagement laws, and yet i t helped launch the modern environmental and food safety movement by exposing the hidden dangers of pesticides, and by questioning the very nature o f this 'scientific evidence'.
I t is not, however, the strategy of the food multinationals to file numerous lawsuits under the food disparagement laws. They are wary of providing extra
The new food slander laws are but one of a wide variety of tactics being used by the food multinationals to marginalize dissent on the part of consumers and the emerging organic food movement.
publicity for food activists by giving them their day i n court, especially i n the wake of the recent public relations disaster suffered by McDonald's i n the U K McLibel trial. Rather, America's food giants simply want the threat o f a lawsuit - and its huge financial costs - to hang like a cloud over journalists and food safety advocates. They understand that i f a case ever fully goes to trial and makes its way through the Appeals Courts, the food slander laws are likely to be declared unconstitutional.
I n fact, sources close to the Oprah Winfrey lawsuit say that those involved are anxious to settle the case, and are considering a large donation to her favourite charity as well as an apology i n exchange for dropping the lawsuit before i t comes to trial.
"To fulfi l the agricultural disparagement statute's purpose o f protecting the agricultural economy by restricting criticism, sanctions need never actually be imposed," Bederman and colleagues accurately point out. "The mere enact
ment o f the statute and the possibility that a person may be sued under i t has a chilling effect."
Other American activist groups are also under attack. Earlier this year, a letter was sent to Vermont-based Food & Water, a leading food safety organization working to stop food irradiation [see accompanying box]. One of Food & Water's current campaigns is to stop the state of Hawaii building a nuclear irradiation plant to zap its exotic tropical fruits. Food & Water received a threatening letter from the law firm, Olsson, Frank and Weeda (hired by the United Fresh Fruit & Vegetable Association [UFFVA]) warning the organization to "cease and desist" from criticizing irradiation. Food & Water has been successful i n reversing the pro-irradiation positions o f three UFFVA members corporations.
"The food industry has effectively bought these laws from politicians so that citizens concerned with issues such as irradiation, toxic pesticides, or food biotechnology wil l think twice before speaking out about the devastating impact such technologies have on the planet and its inhabitants," says Michael Colby, Executive Director of Food & Water.
"Should the UFFVA decide to take this to the next step and go to court, the publicity wil l only increase and we'l l have an amazing opportunity to bring one scientist and citizen after another before the judge and jury to explain just how wacky the idea of food irradiation actually is, all at no cost to us," says Colby.
The US food industry regularly justifies the need for food disparagement laws by citing the example of the socalled "Alar scare". I n 1989, the popular "60 Minutes" T V show exposed the
The Ecologist, Vol . 27, No . 6, November/December 1997