Mad cowboys: the beef industry takes aim at 'food disparagement.'

"You said [mad cow disease] could make AIDS look like the common cold?" asked TV talk show host Oprah Winfrey. "Absolutely," said her guest, Howard Lyman of the Humane Society of the United States (HSUS). "That's an extreme statement, you know," Winfrey said. "Absolutely," Lyman said again. "A hundred thousand cows per year in the U.S. are fine at night, dead in the morning. The majority of those cows are rounded up, ground up, fed back to other cows. If only one of them has mad cow disease, it has the potential to affect thousands."

After hearing a bit more of what Lyman, a former Montana rancher who now represents HSUS' Eating With a Conscience Campaign, had to say about the danger of mad cow disease coming across the Atlantic from England, Winfrey was convinced. "It has just stopped me cold from eating another burger," she said.

The Oprah show aired on April 16, 1996, less than a month after the British government reversed a decade of denial and admitted that consumption of beef from mad cows was the "most likely" explanation for the appearance of a bizarre, previously unseen dementia in humans known as "new variant Creutzfeldt-Jakob Disease," an incurable and invariably fatal strain that kills its victims by filling their brains with microscopic, spongy holes. To date, only 19 cases have been documented. Lyman's statement about mad cow disease being "worse than AIDS' was based on the fact that both can take years, even decades, to incubate, thereby making it impossible to predict the size of an outbreak during its early stages.

The broadcast produced a dramatic price drop in cattle futures on the Chicago Mercantile Exchange, and an uproar from the meat industry, lead by the National Cattlemen's Beef Association (NCBA). Despite the fact that Winfrey agreed to a follow-up interview with the NCBA's policy director, the industry took legal action anyway, with a $2 million lawsuit filed against Lyman and Oprah by beef feedlot operator Paul Engler. The suit charges that Lyman made "biased, unsubstantiated, and irresponsible claims against beef..."

The lawsuit against Lyman marked the historic first test case for a new legal standard which the agriculture industry has spent the past five years lobbying into law in more than a dozen U.S. states - "food disparagement." Engler's attorney describes the suit as "an historic case; it should make reporters and journalists and entertainers - and whatever Oprah considers herself - more careful."

Under the new laws, it doesn't matter that Lyman believes in his statements, or even that he can produce scientists who will support him. The industry will be able to convict him of spreading "false information" if it can convince a jury that his statements on the show deviated from "reasonable and reliable scientific inquiry, facts, or data" - a legal standard which gives a clear advantage to the multi-billion-dollar beef industry, particularly in Texas cattle country, where the lawsuit was filed.

In legal jargon, food disparagement suits are called SLAPPs, for Strategic Lawsuit Against Public Participation. The SLAPP against Oprah originated in a coordinated campaign spearheaded by the nonprofit Washington-based Animal Industry Foundation, whose funding comes from the meat industry.

Essentially, food disparagement laws are industries payback for the victory won by consumers when, following a media campaign, the pesticide Alar (sprayed on apples to make them ripen longer before falling off the tree) was pulled off the market by its manufacturer, the Uniroyal Corporation. The Environmental Protection Agency (EPA) concluded in 1985 that Alar might be causing as many as 100 cancers per million people - a risk factor 100 times over EPA standards.

Alar stayed on the market, though, until rocked by a 1989 60 Minutes expose entitled "A is for Apple." The documentary's point was reinforced by public service announcements from the Natural Resources Defense Council (NRDC) featuring actress Meryl Streep, who warned that Alar had been detected in apple juice bottled for children. The apple industry abandoned Alar, but growers in Washington filed a lawsuit the next year against CBS, NRDC and its public relations consultant, Fenton Communications. In a ringing victory for environmentalists, the suit was dismissed by a judge who noted that "governmental methodology fails to take into consideration the distinct hazards faced by preschoolers." The industry setback led to the 1991 passage of the first state food disparagement law, pushed through by apple growers in Colorado.

Biotechnology giant Monsanto has taken similar legal action - to protect the image of its genetically engineered bovine growth hormone, rBGH. Monsanto's own studies have linked rBGH use to increased udder infections and other health problems in cows, but the company has filed lawsuits against dairies advertising that their milk is "rBGH-free," because of its implied notion that non-rBGH-free milk is harmful.

Actual court victories are not necessarily the goal of a SLAPP suit. They primarily aim to chill speech by forcing defendants to spend huge amounts of time and money defending themselves in court. "The longer the litigation can be stretched out...the closer the SLAPP filer moves to success," observes New York Supreme Court Judge Nicholas Colabella. And the industry can simply threaten to file a suit, as it did in a recent warning to Food & Water Inc., a grassroots group in Vermont that campaigns against the use of radiation to extend shelf life in foods.

The American Civil Liberties Union (ACLU) challenged Georgia's food disparagement law, but in 1995 a state court upheld it on a technicality. David Bederman, the Emory University Law School professor who represented the ACLU in that case, comments, "The freedom of speech, always precious, becomes ever more so as the agricultural industries use new methods such as exotic pesticides, growth hormones, radiation, and genetic engineering on our food supply." Perhaps he shouldn't say that too loud - he could get SLAPPed. CONTACT: Food & Water Inc., RR 1, Box 68D, Walden, VT 05873/[phone]; Pure Food Campaign, 860 Highway 61 East, Silver Bay, MN 55614/[phone].