Food Disparagement Laws: A New Tool in an Old Bag of Tricks

A June 1, 1999 New York Times article, "Farmers' Right to Sue Grows, Raising Debate on Food Safety," brought to many readers attention the dangers of so-called "food disparagement" laws. Thirteen states have passed laws to "protect" farmers and food companies from criticism of perishable agricultural products. If you criticize food products in the public arena, say in a newspaper or on the Internet, you risk getting dragged through court and spending a great deal of money in the process for exercising your constitutional rights. Essentially state sanctioned SLAPP suits, food disparagement laws silence public debate with the threat of a lawsuit.

Strategic Lawsuits Against Public Participation, or SLAPP suits, have been around since individuals and groups began aggressively challenging corporate activities. Before food disparagement laws were enacted, most SLAPP suits were brought around land use and environmental issues. Now words that threaten profit qualify as reason enough sue. Even though most of these suits are legally baseless and are eventually dismissed by the courts, they are effective at silencing people that have been speaking out in an attempt to influence government policy or public perception. They claim enormous damages and ultimately deter free speech through abuse of the judicial process. Maybe the laws should be called "what you don't know won't hurt you" because the threat of lawsuits backed by food disparagement laws means books are being pulled from the presses, television shows are canceled, and people aren't saying what they think or what they know. Though those with loud voices and small bank accounts are usually the targets of SLAPP suits, the rich and powerful are not exempt. Financier, movie actress, and television host Oprah Winfrey was sued for responding to what she had learned about Mad Cow disease by saying, "It has just stopped me cold from eating another burger." She spent $1 million on court costs defending her right to say this on national television. She didn't win the case because the law restricted her freedom of speech, she won it because a Texas judge decided that beef was not a "perishable agricultural product."

Our favorite Orwellian corporation, Monsanto, is certainly familiar with the power of these laws. Publication of "Against the Grain: Biotechnology and the Corporate Takeover of Your Food" by Marc Lappe and Britt Bailey was canceled by its first publisher after it received a threatening letter from a lawyer at the Monsanto company who said he believed the manuscript included false statements about Monsanto's biggest money earner, the herbicide RoundUp. RoundUp accounts for over 50% of Monsanto's earnings, which in 1996 topped $9.6 billion. These days, when Goliath talks, David listens.

Bruce Johnson, a Seattle lawyer familiar with food disparagement laws said in the New York Times article, "If the laws had been in place in the 1960s, Rachel Carson might not have found a publisher willing to print Silent Spring." When Carson wrote Silent Spring, she and her publisher were well aware of the power of corporate America. The same people threatening lawsuits and attacking dissent today were doing the same thing in 1962.

Rachel Carson spent four years writing Silent Spring. During that time, she was deeply concerned about potential industry attacks and lawsuits. She did what she could to protect herself. Carson and her literary agent, Marie Rodell, asked her publisher's lawyers to review the manuscript. She made sure she had insurance coverage. And building the best defense of all, she meticulously checked her facts and diligently worked on a list of principal sources to document her conclusions.

After the book was published, she got it from all sides. Some of the criticism was laughable. After the second installment of Silent Spring appeared in the New Yorker magazine, a man from California wrote to the magazine's editor:

Miss Rachel Carson's reference to the selfishness of insecticide manufacturers probably reflects her Communist sympathies, like a lot of our writers these days. We can live without birds and animals, but, as the current market slump shows, we cannot live without business. As for insects, isn't just like a woman to be scared to death of a few little bugs! As long as we have the H-bomb everything will be O.K. PS. She's probably a peace-nut too.

But industry's attack on Rachel Carson was swift and vicious. The chemical companies banded together and hired a public relations firm to malign the book and attack Carson's credibility. The pesticide industry trade group, National Agricultural Chemicals Association, spent over $250,000 to denigrate the book and its author. The company that manufactured and sold the pesticides chlordane and heptachlor, the Velsicol Chemical Company of Chicago, had their general counsel send a threatening letter to Carson's publisher and everyone else involved with the publication of the Silent Spring. And Monsanto, an industry leader in the manufacture of agricultural pesticides before and after Rachel Carson, did its part to take the punch out of Carson's message. The company put out a parody of Carson's work, called "the Desolate Year," in their October 1962 magazine (Monsanto Magazine).

Quietly, then, the desolate year began. Not many people seemed aware of danger. After all, in the winter, hardly a housefly was about. What could a few bugs do, here and there? How could the good life depend upon something so seemingly trivial as bug spray? Where were the bugs anyway? The bugs were everywhere. Unseen. Unheard. Unbelievably universal. Beneath the ground, beneath the waters, on and in limbs and twigs and stalks, under rocks, inside trees and animals and other insects -- and, yes, inside man.

Carson had Monsanto and its brethren pegged. With clairvoyance she said, "Man seems actually likely to take into his hands -- ill-prepared as he is psychologically -- many of the functions of God."

No rule of law says that corporations need be deceitful and destructive. Plenty are not. But for too many, profit carries more clout than prudence. It wasn't about the chemical companies controlling nature for the good of humankind in Carson's day any more than it is about agribusiness saving the world from starvation today. It is about profit. The only decent thing to do is talk about it; sort it out; let the public make informed decisions about what is right and what is wrong. No legislation or legal action can change that.

Laura Orlando

Notes

Rachel's Environment and Health Weekly #637 - Against The Grain, February 11, 1999.

"Rachel Carson: Witness to Nature," by Linda Lear, Henry Holt and Company, 1997.

The New York Times, "Farmers' Right to Sue Grows, Raising Debate on Food Safety," June 1, 1999, page 1.

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