`Oprah' Case To Test Food-Libel Law -- Beef Industry Says She Damaged Sales

WASHINGTON - In some parts of the United States, you can be sued for dissing pears, castigating cauliflower, ridiculing emu meat or - as TV celebrity Oprah Winfrey learned - bad-mouthing beef.

Thirteen states, responding to pressure from agricultural organizations, have adopted food-defamation laws in the 1990s. More than a dozen other states are considering similar legislation.

In general, these statutes make it possible for farmers and ranchers to win damages from consumer groups, health advocates, journalists or anyone else who spreads false information about the safety of a food.

The first court test of the laws is set for Jan. 7, the starting date for a federal jury trial of a lawsuit filed by Texas cattle ranchers against Winfrey and one of her guests.

The ranchers claim the cattle industry lost millions of dollars as a result of remarks made primarily by Howard Lyman, a vegetarian and director of the Humane Society's Eating with Conscience Campaign, on the "Oprah" show of April 16, 1996.

Lyman said "mad-cow disease" would plague the U.S. beef industry because it is "following exactly the same path they followed in England." Winfrey, apparently impressed by Lyman's remarks, said she would stop eating hamburgers.

"Sooner or later, these laws will be held unconstitutional, I'm sure of it," ventured P. Cameron DeVore, a Seattle lawyer who specializes in freedom of expression.

Had such laws been on the books decades ago, said David Bederman, a law professor at Emory University in Atlanta, they could have been used to punish the people who first warned of the dangers of DDT or tobacco.

That's nonsense, says Steve Kupperud, senior vice president of the American Feed Industry Association and a foremost advocate of food-disparagement laws.

"If activists stand up and say `cauliflower causes breast cancer,' they've got to be able to prove that," Kupperud said. "I think that to the degree that the mere presence of these laws has caused activists to think twice, then these laws have already accomplished what we set out to do."

From apples to emus

Food-disparagement laws were triggered by the failure of apple growers in Washington state to obtain damages for losses attributed to a CBS "Sixty Minutes" broadcast in 1989. The broadcast said Alar, a chemical used to lengthen the time that apples ripen on trees, could cause cancer.

The apple growers' suit was dismissed on grounds that the alleged defamation was directed at a product, not at specific producers, and that a food could not be defamed.

Farmers and food producers are eager to use the laws "to fight wacky claims that hurt them in their bottom line," Kupperud said, but they are waiting to see how the Oprah case turns out.

Another group of ranchers decided not to wait. They are trying to make a living from the emu, a large, flightless, Australian cousin of the ostrich. To them, the emu's future as a low-fat, nutrition-rich food for humans is no joking matter.

At least that's how they reacted when they saw a Honda commercial on television. It satirically warned viewers not to emulate a young failure named Joe, who flitted from one dubious occupation to another.

"Emu, Joe, it's the pork of the future," a gap-toothed rancher advised Joe in the commercial.

Incensed, a group of real emu ranchers filed a food-disparagement suit last month. The ranchers, already reeling from a depressed market, claimed that the commercial drove emu prices even lower.

Oprah to go on trial

The Oprah Winfrey case will be heard in the courtroom of U.S. District Judge Mary Lou Robinson of Amarillo, Texas, and lawyers on both sides say they are ready for trial.

They will focus on Lyman's remarks on the Oprah show that U.S. cattle are subject to mad-cow disease (bovine spongiform encephalopathy), a brain-destroying ailment that has killed cattle in England. It is believed to have been spread by cattle feed containing ground parts of sheep.

Lyman told Winfrey's large television audience that thousands of American cows die each year of unknown causes and are "grounded up, turned into feed and fed back to other cows. If only one of them has mad-cow disease, (it) has the potential to infect thousands."

Turning to her audience, Winfrey asked: "Now doesn't that concern you all a little bit right here, hearing that?

"It has just stopped me cold from eating another burger. I'm stopped."

Cattle futures plummeted after the broadcast.

The suit was filed by Paul Engler, an Amarillo rancher, and Cactus Feeders, a large cattle producer in the Texas Panhandle. They demanded $6.7 million from Lyman, Winfrey and her production company.

Under Texas law, anyone who says that a perishable food product is unsafe - and knows it to be false - might be required to pay damages to the producer of such a product.

The 13 states with food-disparagement laws are Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North and South Dakota, Ohio, Oklahoma and Texas.

States reported to be considering similar legislation include California, Iowa, Maryland, Nebraska, South Carolina, Vermont, Washington, Wisconsin and Wyoming.