Pink Slime Lawsuit—Beef Products, Inc. vs ABC News

To recap: News that the U.S. Department of Agriculture (USDA) planned to use the ground beef filler in school meals prompted a pop­u­lar online peti­tion, along with sev­eral news broad­casts by ABC News, expos­ing how “lean finely tex­tured beef” (industry’s pre­ferred euphemism) was man­u­fac­tured. ABC News relied on inter­views with sev­eral experts, includ­ing the USDA sci­en­tist Gerald Zirnstein who coined the prod­uct “pink slime.”

Consumers were out­raged to learn their beloved ham­burg­ers con­tained what some claimed was pre­vi­ously used as dog food. As a result of the mas­sive back­lash, sev­eral large gro­cery chains stopped using the prod­uct, and even­tu­ally, (so the com­pany claims) BPI was forced to shut down sev­eral facil­i­ties and lay off hun­dreds of work­ers. The gal­lant (and appalling) dis­play of polit­i­cal mus­cle that included three gov­er­nors, a web­site to get out “the facts” (beefisbeef.com) and even a “Dude, It’s Beef!” t-shirt just weren’t enough to stem the tidal wave of angry con­sumers who didn’t want the prod­uct in
heir burg­ers.

But isn’t this how the mar­ket is sup­posed to work? When con­sumers decide they don’t like your prod­uct, maybe your com­pany should recon­sider its busi­ness model to con­form to the mar­ket­place? Funny how when the mar­ket responds in the way cap­i­tal­ism intends, and in this case, with­out any pesky gov­ern­ment reg­u­la­tion, industry’s response is to sue some­body, aka shoot the messenger.

The argu­ments con­tained in the 257-page ridicu­lously redun­dant and tedious legal com­plaint come down to this: The defen­dants delib­er­ately dis­par­aged the beef prod­uct numer­ous times and in var­i­ous ways, despite the meat industry’s repeated attempts to set the record straight. The alleged price tag for doing so: $1.2 bil­lion. The most amus­ing part is BPI’s argu­ment that ABC News con­spired to prompt the con­sumer backlash:

The pur­pose of the ABC Defendants’ actions was to grow the so-called “grass­roots” move­ment against LFTB [lean finely tex­tured beef] that they cre­ated them­selves. The ABC Defendants knew that con­sumer pres­sure would force many of the chains to decide to stop sell­ing ground beef with LFTB. Indeed, the “grass­roots” move­ment cre­ated by the Defendants’ dis­in­for­ma­tion cam­paign was suc­cess­ful. The major gro­cery store chains had lit­tle choice but to respond to the con­sumer back­lash, and they did so by can­celling or sus­pend­ing future orders of ground beef made with LFTB.

But the com­plaint offers no moti­va­tion that ABC News would have to “grow” such an anti-LFTB move­ment. And if the gro­cery stores had no choice but to respond to con­sumers, how is that the defendant’s fault exactly? While they’re at it, why not sue the con­sumers for “inter­fer­ing” with BPI’s con­tracts (another silly claim in
the com­plaint)?

Despite the issue being reported by numer­ous media out­lets at the time, the tar­get of this law­suit is clearly ABC News. In addi­tion to the com­pany, the suit names World News Tonight anchor Diane Sawyer, Senior National Correspondent Jim Avila (who bravely stayed with the story) and cor­re­spon­dent Dave Kerley. Also named are two for­mer USDA sci­en­tists, Zirnstein and Carl Custer, along with ex-BPI employee turned whistle­blower Kit Foshee. (I wrote about Foshee’s dra­matic pre­sen­ta­tion at a food safety con­fer­ence last year while BPI exec­u­tives kept a close watch in the audi­ence.) All three of these defen­dants, made rel­e­vant com­ments else­where, but are cited mainly for the state­ments they made on ABC News broad­casts. The suit also claims that ABC should have known these three were not
reli­able experts.

One prob­lem. The law­suit ignores how the issue had already been made pub­lic at least sev­eral years ear­lier in one of a series of New York Times arti­cles by Michael Moss. In his 2009 story, “Safety of Beef Processing Method is Questioned,” Moss quotes both Zirnstein and Custer, and even refers to “pink slime”, pos­si­bly the first time the phrase was used pub­licly. Moss wrote:

Carl S. Custer, a for­mer U.S.D.A. micro­bi­ol­o­gist, said he and other sci­en­tists were con­cerned that the depart­ment had approved the treated beef for sale with­out obtain­ing inde­pen­dent val­i­da­tion of the poten­tial safety risk. Another depart­ment micro­bi­ol­o­gist, Gerald Zirnstein, called the processed beef “pink slime” in a 2002 e-mail mes­sage to col­leagues and said, “I do not con­sider the stuff to be ground beef, and I con­sider allow­ing it in ground beef to be a form of fraud­u­lent labeling.”

Pretty damn­ing stuff. So why didn’t BPI sue the New York Times in 2009? Reporter Michael Moss cited the same (sup­pos­edly unre­li­able) experts ABC did. But, of course, the Times story didn’t cause a mas­sive con­sumer backlash.

Considering how the ABC reports were hardly even news, com­bined with the broad free speech pro­tec­tions the media enjoys, BPI’s law­suit seems pretty weak, as oth­ers have noted. Drake University Agricultural Law Professor Neil Hamilton told a South Dakota news out­let (the case was filed in BPI’s home state) that it will be a tough case to win, given that defama­tion cases are always dif­fi­cult and, “… [p]articularly in a sit­u­a­tion like this, where you are argu­ing food prod­uct dis­par­age­ment…” ABC News will argue First Amendment pro­tec­tion. The case is based in part on South Dakota’s “food dis­par­age­ment” law, passed
in 1994.

If this all sounds vaguely famil­iar, it should. You may recall how Oprah Winfrey was sued in 1996, along with ex-cattle rancher Howard Lyman, by the beef indus­try for talk­ing about the risks of Mad Cow Disease. The basis for that law­suit was the Texas food dis­par­age­ment law. Such statutes passed in the 1990s and dubbed “veggie-libel laws” are still on the books in numer­ous states. As I wrote back in 1998, these laws were (and are) “an effort by big busi­ness to chill the free speech efforts by those seek­ing to raise legit­i­mate ques­tions about the safety of our nation’s food supply.”

At the end of the day, this is what the BPI case is really about. Even if found to be with­out merit and thrown out of court, the intended mes­sage will be sent: scare the media and oth­ers out of speak­ing out against the meat indus­try. This is known as a SLAPP suit, which stands for Strategic Lawsuit Against Public Participation. According to the First Amendment Project, most SLAPP cases are unsuc­cess­ful. However, they still can have their intended effect:

While most SLAPPs lose in court, they “suc­ceed” in the pub­lic arena. This is because defend­ing a SLAPP, even when the legal defense is strong, requires a sub­stan­tial invest­ment of money, time, and resources. The result­ing effect is a “chill” on pub­lic par­tic­i­pa­tion in, and open debate on, impor­tant pub­lic issues.

Even the strong media force Oprah Winfrey felt the sting of being SLAPP’d, despite her win­ning the law­suit. According to this recent analy­sis, Winfrey declined to speak pub­licly about the case and even refused to dis­trib­ute the offend­ing episode to jour­nal­ists or any­one else who requested it.

Bettina Siegel, the blog­ger who started the orig­i­nal peti­tion to stop USDA from allow­ing the filler in the beef that the agency sup­plies to schools, doesn’t think the cur­rent case will change anyone’s mind, at least about pink slime:

Unfortunately for BPI, no lit­i­ga­tion can return us to the time when Americans were unaware that LFTB was in the nation’s ground beef sup­ply. Now that they under­stand the nature of the prod­uct, many con­sumers have made it abun­dantly clear that they don’t want it to eat it. You can’t un-ring the bell.

Michele Simon

Michele is a pub­lic health lawyer who has been research­ing and writ­ing about the food indus­try and food pol­i­tics since 1996. Visit her site at www.EatDrinkPolitics.com/