"Pink Slime" Lawsuit May Be Frivolous, But Could Chill Speech

To no one's surprise, Beef Products Inc. (BPI) - maker of the ground beef product that took on the moniker of "pink slime" - filed a defamation lawsuit earlier this month against ABC News and several individuals. As I wrote in March at the height of the media uproar and consumer backlash, the entire pink slime affair should be viewed as a huge wake-up call to the harsh realities of our industrialized meat supply. To recap: News that the U.S. Department of Agriculture (USDA) planned to use the ground beef filler in school meals prompted a popular online petition, along with several news broadcasts by ABC News, exposing how "lean finely textured beef" (industry's preferred euphemism) was manufactured. ABC News relied on interviews with several experts, including the USDA scientist Gerald Zirnstein who coined the product "pink slime." Consumers were outraged to learn their beloved hamburgers contained what some claimed was previously used as dog food. As a result of the massive backlash, several large grocery chains stopped using the product, and eventually, (so the company claims) BPI was forced to shut down several facilities and lay off hundreds of workers. The gallant (and appalling) display of political muscle that included three governors, a website to get out "the facts" (beefisbeef.com) and even a "Dude, It's Beef!" t-shirt just weren't enough to stem the tidal wave of angry consumers who didn't want the product in their burgers. But isn't this how the market is supposed to work? When consumers decide they don't like your product, maybe your company should reconsider its business model to conform to the marketplace? Funny how when the market responds in the way capitalism intends, and in this case, without any pesky government regulation, industry's response is to sue somebody, aka shoot the messenger. The arguments contained in the 257-page ridiculously redundant and tedious legal complaint come down to this: The defendants deliberately disparaged the beef product numerous times and in various ways, despite the meat industry's repeated attempts to set the record straight. The alleged price tag for doing so: $1.2 billion. The most amusing part is BPI's argument that ABC News conspired to prompt the consumer backlash: The purpose of the ABC Defendants' actions was to grow the so-called "grassroots" movement against LFTB [lean finely textured beef] that they created themselves. The ABC Defendants knew that consumer pressure would force many of the chains to decide to stop selling ground beef with LFTB. Indeed, the "grassroots" movement created by the Defendants' disinformation campaign was successful. The major grocery store chains had little choice but to respond to the consumer backlash, and they did so by cancelling or suspending future orders of ground beef made with LFTB. But the complaint offers no motivation that ABC News would have to "grow" such an anti-LFTB movement. And if the grocery stores had no choice but to respond to consumers, how is that the defendant's fault exactly? While they're at it, why not sue the consumers for "interfering" with BPI's contracts (another silly claim in the complaint)? Despite the issue being reported by numerous media outlets at the time, the target of this lawsuit is clearly ABC News. In addition to the company, the suit names World News Tonight anchor Diane Sawyer, Senior National Correspondent Jim Avila (who bravely stayed with the story) and correspondent Dave Kerley. Also named are two former USDA scientists, Zirnstein and Carl Custer, along with ex-BPI employee turned whistleblower Kit Foshee. (I wrote about Foshee's dramatic presentation at a food safety conference last year while BPI executives kept a close watch in the audience). All three of these defendants, made relevant comments elsewhere, but are cited mainly for the statements they made on ABC News broadcasts. The suit also claims that ABC should have known these three were not reliable experts. One problem. The lawsuit ignores how the issue had already been made public at least several years earlier in one of a series of New York Times articles by Michael Moss. In his 2009 story, "Safety of Beef Processing Method is Questioned," Moss quotes both Zirnstein and Custer, and even refers to "pink slime", possibly the first time the phrase was used publicly. Moss wrote: Carl S. Custer, a former U.S.D.A. microbiologist, said he and other scientists were concerned that the department had approved the treated beef for sale without obtaining independent validation of the potential safety risk. Another department microbiologist, Gerald Zirnstein, called the processed beef "pink slime" in a 2002 e-mail message to colleagues and said, "I do not consider the stuff to be ground beef, and I consider allowing it in ground beef to be a form of fraudulent labeling. Pretty damning stuff. So why didn't BPI sue the New York Times in 2009? Reporter Michael Moss cited the same (supposedly unreliable) experts ABC did. But, of course, the Times story didn't cause a massive consumer backlash. Considering how the ABC reports were hardly even news, combined with the broad free speech protections the media enjoys, BPI's lawsuit seems pretty weak, as others have noted. Drake University Agricultural Law Professor Neil Hamilton told a South Dakota news outlet (the case was filed in BPI's home state) that it will be a tough case to win, given that defamation cases are always difficult and, "... [p]articularly in a situation like this, where you are arguing food product disparagement..." ABC News will argue First Amendment protection. The case is based in part on South Dakota's "food disparagement" law, passed in 1994. If this all sounds vaguely familiar, it should. You may recall how Oprah Winfrey was sued in 1996, along with ex-cattle rancher Howard Lyman, by the beef industry for talking about the risks of Mad Cow Disease. The basis for that lawsuit was the Texas food disparagement law. Such statutes passed in the 1990s and dubbed "veggie-libel laws" are still on the books in numerous states. As I wrote back in 1998, these laws were (and are) "an effort by big business to chill the free speech efforts by those seeking to raise legitimate questions about the safety of our nation's food supply." At the end of the day, this is what the BPI case is really about. Even if found to be without merit and thrown out of court, the intended message will be sent: scare the media and others out of speaking out against the meat industry. This is known as a SLAPP suit, which stands for Strategic Lawsuit Against Public Participation. According to the First Amendment Project, most SLAPP cases are unsuccessful. However, they still can have their intended effect: While most SLAPPs lose in court, they "succeed" in the public arena. This is because defending a SLAPP, even when the legal defense is strong, requires a substantial investment of money, time, and resources. The resulting effect is a "chill" on public participation in, and open debate on, important public issues. Even the strong media force Oprah Winfrey felt the sting of being SLAPP'd, despite her winning the lawsuit. According to this recent analysis, Winfrey declined to speak publicly about the case and even refused to distribute the offending episode to journalists or anyone else who requested it. Bettina Siegel, the blogger who started the original petition to stop USDA from allowing the filler in the beef that the agency supplies to schools, doesn't think the current case will change anyone's mind, at least about pink slime: Unfortunately for BPI, no litigation can return us to the time when Americans were unaware that LFTB was in the nation's ground beef supply. Now that they understand the nature of the product, many consumers have made it abundantly clear that they don't want it to eat it. You can't un-ring the bell. This article was originally published by the Center for Food Safety on September 27, 2012.  © Food Safety News More Headlines from Opinion & Contributed Articles »