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"Push Grows for Law on 'Veggie Libel'"
Los Angeles Times, August 20, 1997, By Martha Groves, Times Staff Writer

"Besmirching broccoli or sullying squash can get you smacked with a libel suit in 13 states. Those are agriculture-friendly locales--including Texas, Oklahoma, Colorado and North Dakota--where growers have won passage of laws making it a crime to falsely denigrate fruits and vegetables.

In California, the nation's most abundant farm state--where agriculture is a $24.5-billion-a-year industry and nearly one in 10 jobs relates directly to farming--efforts to pass "veggie libel" legislation have failed on 1st Amendment grounds and because of concerns about the potential chilling effect on food-safety debates.

But now a Democratic state senator from Fresno is carrying a measure that would require the California Department of Food and Agriculture to quantify the damages that farmers maintain they have suffered in the last decade because of disparaging statements about crops. The measure, which sailed through the state Senate, could come up for an Assembly vote as early as Monday.

Indeed, growers and other proponents of the California measure, advanced by Sen. Jim Costa, hope that a study showing significant adverse economic effects of "food disparagement" could help build support for a full-fledged libel law. Under such laws, damaged parties may sue in civil court in an effort to recoup monetary losses.

In an era when food scares are parading into the limelight--E. coli in beef, basil and unpasteurized apple juice, cyclospora in raspberries, salmonella in eggs and hepatitis A in frozen strawberries--it is little wonder that agribusiness interests have banded together. Sales of a given commodity can suffer mighty blows when health officials, scrambling to limit the public's exposure to a contaminant, feel pressured to brand a culprit, sometimes before all the facts are in.

Last year, for example, California's strawberry industry lost an estimated $20 million to $40 million in nationwide sales after a Texas health official pinned an outbreak of cyclospora, a parasitic illness, on strawberries.

The cyclospora problem was ultimately traced to Guatemalan raspberries. This season, the California Strawberry Commission said, financially devastated farmers removed about 3,000 acres, or one-tenth of the previous total, from strawberry production, costing an estimated 5,000 farm workers their jobs.

"We have been a victim of what I guess you could technically say was a false accusation," said Teresa Thorne, a spokeswoman for the commission, based in Watsonville. For a variety of reasons--notably cost and an unwillingness to keep the story in the public eye--the commission chose not to sue under Texas' food disparagement legislation.

Ensuring food safety and protecting the industry's reputation are on agriculture's mind. In Sacramento on Tuesday, the Western Growers Assn. and the International Fresh-Cut Produce Assn. introduced voluntary guidelines designed to enhance the safety of fresh fruits and vegetables as they move from field to retailing outlets.

Veggie libel laws have their roots in the 1989 crisis involving apples and alar, a growth regulator. After CBS' "60 Minutes" aired a segment challenging the safety of apples sprayed with that chemical, California and Washington apple growers got pounded, losing an estimated $500 million in sales.

Since then, as a bevy of food-borne illnesses have garnered prominent media attention, producers of commodities from strawberries to beef say they have been negatively affected by the remarks of food-safety activists, farm labor groups and health officials.

The highest-profile test of a veggie libel law to date involves none other than talk-show doyenne Oprah Winfrey, who, along with her production company, her program's distributor and a guest on one of her programs, is a defendant in a suit brought by Texas cattle interests. Paul Engler, owner of an Amarillo cattle-feeding operation, is leading that charge, claiming that a food-safety activist's comments on Winfrey's program about "mad cow" disease--and the ensuing plunge in cattle futures and cattle prices--cost him $6.7 million. Lawyers are taking depositions, with anticipation of a trial later this year in federal court in Amarillo.

During an "Oprah" show last year, Howard Lyman, a former cattleman turned U.S. Humane Society official, said 100,000 cows in this country drop dead annually for no known reason and are ground up and fed to other cows. If just one of them had mad cow disease, Lyman told the audience, that could infect thousands.

Winfrey's response, according to the lawsuit: "It has just stopped me from eating another burger!" Chip Babcock, Winfrey's Texas attorney, said a loss in this case could have a "freezing effect" on scientific dialogue and open discussions about human health. With mad cow disease, which destroys the brains of cattle, knowledge is limited and evolving.

He added that Lyman's concerns were validated earlier this summer when the Food and Drug Administration ordered a halt to feeding cattle any meat and bone meal from other cattle.

These bills, agreed Seattle attorney Bruce Johnson, "are designed specifically to stop the Rachel Carsons of the world from alerting the public to food-safety risks. If these were in effect in 1962 [when Carson published 'Silent Spring,' a book about DDT dangers], they would have sued her and forced her into bankruptcy."

Johnson, who defended CBS in a suit resulting from the alar story, said such measures "are unlikely to be constitutional." That suit was dismissed by a federal judge in Washington state in 1993.

But Michael St. Denis, a Los Angeles-based attorney for Engler in the Texas case, said producers of perishables should be entitled to special protection because of time constraints. "If you have a perishable food product . . . it has to go to market at a particular time," St. Denis said. "You can't sit on fruit for six weeks."

Nonetheless, previous efforts to pass veggie libel laws in Sacramento have been stymied. Two years ago, Costa and Assemblyman Tom J. Bordonaro Jr. (R-Paso Robles) proposed companion bills that would have created "veggie libel" as a new civil cause of action. The bills were killed in both houses' judiciary committees after legislators raised concerns that such laws would curb free speech. A similar bill, opposed by trial lawyers, organized labor and newspaper groups, was defeated in the Assembly last month.

But this time Costa, supported by the Western Growers Assn., the California Farm Bureau Federation and the state Department of Food and Agriculture, is taking a lower-key tack, proposing that the state study the issue and report back by next September. Both sides say the vote is too close to call.

As the bill is now written, private funds could be used to finance the study. That means that "agribusiness could fund its own study," said Marc Grossman, a Sacramento lobbyist for the United Farm Workers. "We have no faith in [its] veracity." Grossman said the farm laborers union, which routinely raises concerns about pesticide safety and field sanitation, is a target of the growers group.

"They believe we're going to be boycotting strawberries next year," he said. "We don't plan to, but [under a veggie libel law] such conduct would become subject to litigation and the potential for huge damages."

Proponents, however, say the lack of legislation puts California at a disadvantage with other farm states that have these statutes. And the study would be a first step toward identifying the extent of the problem, if one exists."

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