Texas Ranchers Sue Oprah For Bad-Mouthing Burgers

First legal test of food disparagement law

But on the West Texas cattle range, seldom is heard a disparaging word about beef.

But apparently no one told Oprah Winfrey about a Lone Star State law that prohibits bad-mouthing beef, forbids slandering citrus, and penalizes critics of corn.

While some may view such food-disparagement laws as bizarre, 63 similar statutes in 13 other states make it illegal to publicize safety concerns about food unless such claims can be proved in court with scientific certainty.

In pretrial hearings begun in Amarillo this week, the Texas law faces its first test in a federal court. Superficially, this is a quirky snit between a TV megastar and the Stetson hat crowd. But the case also involves a host of contentious constitutional issues, including freedom of speech and scientific inquiry, protection of property rights, and the safety of our most basic commodity, food.

"If this law is found to be constitutional, I would expect every state that has a substantial agricultural industry would move to protect it," says Scott Powe, a law professor at the University of Texas at Austin. Like many legal experts, Mr. Powe notes his own concerns about the law's infringement of an individual's right to free speech, even if that speech is later proved to be untrue.

A group of Texas ranchers is suing Ms. Winfrey for defamation because she told the audience of her popular TV talk-show that she would stop eating hamburger because of the alleged risk of an outbreak of British "mad-cow" disease on American shores.

For rancher Pete Bonds, who is not a litigant in the Winfrey trial, Texas' three-year-old food-disparagement law is a welcome protection in an age where televised media can have an immediate - and devastating - effect on his fortunes.

After the Oprah Winfrey show aired, cattle prices dropped $18 per head, and Mr. Bonds lost $90,000 in one day.

"I sure ain't no lawyer, but I'm hopeful it will help prevent people from making unsubstantiated negative statements," says Bonds, who runs 5,000 head of cattle each year in the Fort Worth suburb of Saginaw. "I hope that people like Oprah will kind of think before they make some kind of brash statement that can hurt people."

Like Bonds, many cattle ranchers were livid at the claims aired during a 1996 Oprah Winfrey program called "Dangerous Food." On the program, a former rancher-turned-environmentalist said that the American beef industry was just as susceptible to an outbreak of "mad-cow" disease as their counterparts in Britain.

One Texas rancher in particular, Paul Engler of Amarillo, who runs one of the largest cattle operations in the country, was so enraged that he filed suit.

Like all litigants in Engler v. Winfrey, Mr. Engler is under a gag order and cannot speak about the case to reporters, but cattle industry spokesmen say they are thrilled at the prospect of the first test of a food-disparagement law.

"When certain extreme groups make statements that meat, milk, and eggs will kill you, there is a human context, and that is the viability of farmers and ranchers," says Steve Kopperud, whose Roslyn, Va.-based lobby group, the American Feed Industry Association, helped draft a model food-disparagement law. If claims are made about unsafe foods, he says, "you had better be prepared to prove it."

But food-disparagement laws have received a less-than-warm reception from food-safety activists and scientists, who see themselves as the primary targets of the laws.

"Unless you got your law degree from a box of Cracker Jacks, you should understand the enormous infringements these laws have on our civil liberties," says Michael Colby, an environmentalist at the Walden, Vt.-based Food & Water Inc. Hawaiian fruit producers have sent him a letter threatening a lawsuit if he doesn't stop disparaging their food-irradiation process. His response? "Hearty laughter. We said, 'Send it to someone who cares, or at least recycle it.' "

Some legal experts say food-disparagement laws can be applied constitutionally, since some environmental groups are less careful about their facts than others. Factual or not, if they see their profit margins threatened, many agribusiness companies may be tempted to increasingly rely on these laws to squelch "bad" news.

"If these laws were on the books when Rachel Carson was alive, she would have been hounded and sued into bankruptcy," says Bruce Johnson, a Seattle lawyer, referring to the environmentalist who raised the alert about the pesticide DDT. Mr. Johnson defended the news program "60 Minutes" after it aired concerns about the use of the chemical alar in Washington apple orchards.

David Bederman, a law professor at Emory University in Atlanta, agrees that food-disparagement laws could end up stifling public debate about food quality.

"The key question here is how much robust public debate are we going to tolerate in this country," says Dr. Bederman, who led an unsuccessful challenge against a food-disparagement law in Georgia in 1996. "We as a society need to tolerate a certain amount of wrong speech. Under this law, if you have any uncertainty, you can't speak at all."

ALTHOUGH Winfrey's case is the first food-disparagement case to come to court, it is unlikely to be the last.

Already, the same federal court in Amarillo that is hearing the Winfrey case is scheduled to hear another one, on the alleged disparagement of emu products by American Honda Co.

In a tongue-in-cheek ad, Honda portrays a young man who considers a number of careers, including the plastics industry, dubious pyramid schemes, and emu-ranching. At one point, a character in the Honda ad hails emu meat as "the pork of the future." Honda spokesmen say the ad was meant to be humorous, not defamatory, but one group of Huntsville-area emu farmers says the falling demand for emu meat has been no laughing matter.

But regardless of the outcome of the Winfrey case, or its emu echo, Bob Turner says the food-libel law has already had an effect.

"My people in agriculture feel a little comfort zone," says the state representative, a Democrat from Voss, Texas, who represents a large rural district east of San Angelo. "Hopefully, the media will think before they make allegations about food safety."