"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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