‘Veggie libel’ suits not just an attack on rights; they can endanger our food supply

Commentary by Claire Hamner Matturro

The Apalachee Tortoise deserves praise for printing Karla Brandt’s article on SLAPP suits in the August issue, especially in combination with D. K. Roberts’ article, “Will Wakulla and Taylor counties ever embrace democracy?”

Both articles illustrate the increasing crackdowns on environmental and food-safety advocates. A SLAPP suit, as explained in Brandt’s article, is a strategic lawsuit against public participation. Such lawsuits are by definition frivolous, but expensive to defend against by activists who find themselves a defendant in a lawsuit.

 The SLAPP suit concept is simple: Say, an environmentalist uses standard practices like getting petitions signed, letters to the editor, speaking at public hearings, instigating others to write letters to regulatory agencies, etc., in an effort to advance an environmental cause. Then a polluter or developer, who almost always has big corporate bucks and an army of attorneys, sues the environmentalist for bogus claims. The idea is that the lawsuit will break the activist either through the financial costs of the defense, or the lost time. Defending against a lawsuit, even a stupid one, is very expensive, and very unpleasant. I know. I used to be a lawyer.

So-called veggie libel statutes, not addressed by either Roberts or Brandt, compound the risks of SLAPP suits. In Florida, a food-safety advocate who, for example, speaks up against the health hazards of oranges grown with allegedly unsafe pesticides or fertilizers may be sued under section 865.065, Florida Statutes, titled “Disparagement of perishable agricultural food products.”

Oprah Winfrey was sued under a similar statute in Texas. Ultimately, she prevailed. But her legal costs were staggering, and clearly beyond the reach of the ordinary activist. This is, of course, exactly the point of such statutes – these veggie libel laws make it easy for an agribusiness or fertilizer or pesticide corporate to sue the small guy, effectively shutting her or him up.

At least 13 states, including Florida, Georgia, and Texas, have such veggie libel laws. The statutes were enacted as a direct response to the Alar apple scare, where CBS exposed the dangers of Alar. CBS, on its “60 Minutes” program, picked up information about the dangers of Alar from a 1989 report by the Natural Resources Defense Council (NRDC), a report that addressed environmental and public health risks of pesticides and other agricultural chemicals in children’s food.

Due to the publicity generated by “60 Minutes,” apple sales declined and agribusiness lost a great deal of money. Select apple growers sued CBS for telling people about the dangers of Alar on the apples, but the apple agribusiness lost in court.

Again, though CBS won, its legal defense costs were staggering – and clearly beyond the reach of the ordinary citizen-advocate. Interestingly enough, despite the staggering financial burden of this lawsuit to CBS, the warnings against Alar were validated when the Environmental Protection Agency (EPA) revoked Alar’s pesticide registration, and concluded Alar is a “probable human carcinogen.”

The apple industry lost its lawsuit against CBS primarily because the law at the time they brought the suit just did not support a cause of action for what is now called “veggie libel.” Because the apple industry found it hard to pursue fruit libel in a court of law, helpful lobbyists and state legislatures came to the aid of agribusiness and pesticide corporations, and soon such acts as Florida’s “Disparagement of perishable agricultural” were on the books, paving the way for such lawsuits.

 In other words, the Florida and twelve other legislatures, enacted statutes to make it easier to bring SLAPP suits. These so-called veggie libel statutes attack activities once clearly protected by our First Amendment’s freedom of speech guarantee.

Apparently no court has actually ruled upon whether these veggie libel laws are an unconstitutional violation of the First Amendment’s rights to freedom of speech. But a strong consensus among many law professors who have written articles on the subject agree these statutes are unconstitutional.

Basically these veggie libel laws create a whole new tort, hand-designed to help big agribusiness win. If such statutes were not so insidious, they would be almost ludicrous. These laws endanger our safe food supply by shutting up people who would tell us about pesticides, bovine growth hormones, Frankenstein-foods, and unsafe levels of additives, and these statutes impinge upon our formerly protected freedom of speech.
Law review articles, not widely read by anyone other than law professors and law students, have documented the chilling impact of such statutes – that is, the mere existence of such statutes coupled with threats, have stopped the publication of information about food safety by at least two book publishers.

It would be hard, if not impossible, to determine how many individual advocates, or how many local health food store newsletters, have shied away from pointing out the dangers of some agribusiness or pesticide practice due to fear of finding themselves in a lawsuit that could destroy their financial and personal lives.

 Matturro is the author of the book Bone Valley, which deals with SLAPP suits.