Like this latest case, Auvil v. CBS “60 Minutes” involved a food product being damaged by what was shown and said on television. In the end, according to Bloomberg LAW, the fight came down to whether the plaintiff had to show the statements made about its food product were false to prove product disparagement.
A federal trial court in Seattle and ultimately the 9th Circuit Court of Appeals in San Francisco said yes, plaintiffs must prove statements made to disparage food products are false.
No doubt, BPI’s counsel, Winston & Strawn, Chicago’s oldest law firm took every word of that 1995 9th Circuit opinion into account when it was writing BPI’s lengthy complaint filed against ABC News in South Dakota state court Thursday.
Auvil v. CBS began on Feb. 26, 1986 when “60 Minutes” aired a segment on the Sunday night magazine show about the use of chemical growth regulator called daminozide on apples.
With the chemical’s popular name being Alar, “60 Minutes” used “A is for Apples” as the headline for the segment. It relied mostly on a report by the Natural Resources Defense Council (NDRC) that claimed the chemical breaks down into a carcinogen.
The late Ed Bradley did the voice overs, calling Alar “the most potent cancer-causing agent in our food supply.” On the broadcast, an NDRC attorney stressed the danger to children who eat more serving of apples than most adults.
The show collapsed demand for apples, a market depression the U.S. Department of Agriculture could not cure with a $15 million emergency purchase. Auvil was the name plaintiff on behalf of 4,700 Washington State apple growers when the group sued “60 Minutes” and NDRC, as well as Fenton Communications Inc., the go between for NDRC and “60 Minutes.”
At both the trial court level and on appeal, apple growers could not produce evidence that was a triable issue of fact as to the falsity of the broadcast.
That left the justices with the job of deciding if proving a “trade libel” meant plaintiffs had to prove something false was said.
“To establish a claim of product disparagement, also known as trade libel, a plaintiff must allege that the defendant published a knowingly false statement harmful to the interests of another and intended such publication to harm the plaintiff’s pecuniary interest,” the appeals court wrote.
Apple growers argued no studies exist showing a relationship between ingestion of Alar and the incidence of cancer in humans. But that was not enough to take away the assertions about Alar made during the broadcast. Nor could the growers offer anything to take down Environmental Protection Agency (EPA) findings.
One way that Auvil v. CBS and BPI v. ABC do seem differ is the kind of factual evidence involved. From the time of the broadcast, “A is for Apple” was about differing views on complex scientific studies and how they were depicted by “60 Minutes.”
NDRC was excused from the litigation for the simple reason that all it did was do a scientific study.
False or not, the facts in BPI v. ABC seem to be much simpler. For example, is or is not Llean Finely Textured Beef — repeatedly called “pink slime” by ABC — in fact beef or not?
Much of the Manhattan phone book size complaint filed by the Chicago lawyers is filled with claims of falsehoods that ABC is accused reporting while it is charged they knew otherwise.
A Closer Look at the BPI v. ABC Complaint
BPI alleges that ABC and others made nearly 200 “false and disparaging” statements that directly harmed the company — causing a precipitous drop in sales resulting in $400 million in lost profits, 700 layoffs, and the closure of the three of the company’s four plants.
The suit names Diane Sawyer, host of ABC World News, and ABC reporters Jim Avila and David Kerley as defendants. Former USDA Food Safety and Inspection Service employees Gerald Zirnstein and Carl Custer and former BPI employee Kit Foshee are also listed — all three appeared on broadcast segments regarding LFTB.
“Through a series of factual misstatements, repeated continuously during the campaign, Defendants knowingly misled the public into believing that LFTB was not beef at all, but rather was an unhealthy “pink slime” “hidden” in ground beef as part of an “economic fraud” masterminded by BPI,” reads the complaint, which alleges that there were five components to the “disinformation campaign.”
The suit first takes issue with the defendants’ use of the term “pink slime,” which they say was used 137 times during the “campaign.”
“There is not a more offensive way of describing a food product than to call it “slime,” which is a noxious, repulsive, and filthy fluid not safe for human consumption. Defendants used this false description to rename LFTB in an effort to incite and inflame consumers against BPI and LFTB.”
(See Food Safety News’ LFTB timeline for background on the name and a history of the controversy.)
Next, the complaint alleges that the defendants misled consumers into believing that LFTB is not beef, or even meat. Defendants stated that LFTB is “not what the typical layperson would consider meat,” they called it “filler,” they said it was added to “pump up” the volume of ground beef. BPI says these claims are “intentional and knowingly false” because LFTB is “100 % beef.”
BPI also alleges that the defendants misled consumers into believing that LFTB is not safe for consumption by referring to the product as being made from “low grade” “scraps” and “waste.”
“LFTB has always been safe for public consumption, and the beef trimmings used by BPI came from USDA-inspected and approved beef.” The suit also takes issue with claims that the product is not as nutritious as muscle meat.
The final component of the “campaign,” according to BPI, was insinuating that the company had engaged in “improper conduct” to gain USDA approval for its product. BPI says they did not exert any improper influence and that the product’s approval was based on the merits of LFTB, and was not approved over the objection of USDA scientists.
The suit also alleges that ABC published and broadcast a “blacklist” of grocery stores that carried LFTB which, they say, interfered and damaged their business relationships with their customers.
What’s next? BPI wants a jury trial in Union County, SD, its home turf. ABC, which called the case “without merit” promises to mount a vigorous defense, is likely to have other ideas.
Editor’s note: Bill Marler, managing partner of Marler Clark LLP, underwriter of Food Safety News has been asked to represent defendants Gerald Zirnstei
n and Carl Custer. Helena Bottemiller contributed reporting.