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The Censorious Silliness of Veggie Libel Laws
By Michael Colby

For the first time ever, the top trade gimp of the produce industry has put the "veggie libel laws" of 12 states to use. The mason? Food & Water's sure-shot campaigns to stop food irradiation. But it takes more than a law created by corporations to stop Food & Water.

Food & Water now has something in common with the Oprah Winfrey Show: we're both being threatened by the draconian new laws in at least 12 backwater states that restrict what they believe to be speech that hurts the reputation of fruits, vegetables, and other food items. They're called "Food Disparagement Laws," and it all began as the result of the great Alar campaign of the late 80's and Food & Water's successful efforts to stymie industry attempts to promote 'food irradiation.

While Oprah and her attorneys are keeping tight lips over the lawsuit recently filed against her by Texas cattle ranchers for an episode she did last year on Mad Cow disease (in which she had the audacity to proclaim that the revelations around this issue had driven her to reconsider the consumption of meat), Food & Water is being anything but quiet about the legal threats we received in April.

It happened like this: just as Food & Water was beginning to turn the tide by securing one victory after another in our campaign to stop Hawaii from adopting irradiation to treat its exotic tropical fruits, we received a rather threatening and desperate letter from one of the food industry's top legal firms, Olsson, Frank and Weeda,

warning us to "cease and desist" from the "irresponsible actions" of educating the public on the dangers of exposing the food supply to radioactive waste. What these hired legal thugs found most appalling was that we had the gall to go directly after corporations rather than waste our time like so many other food safety groups by lobbying the politicians and regulators whom the food industry has already conveniently bought In other words, play the game their way or no way, all under the disintegrating veil of democracy.

Olsson, Frank and Weeda was hired for this particular harassment job by the United Fresh Fruit & Vegetable Association (UFFVA), the nation's top lobbying association for the produce industry. UFFVA, a major supporter of food irradiation, has become increasingly frustrated with Food & Water's continued successes, particularly how we've been able to influence many of its member corporations that show any interest in irradiation by pummeling them with thousands upon thousands of phone calLs and letters from concerned citizens.

UFFVA reached its boiling point when in a matter of a few months Food & Water was able to get three UFFVA member corporations to reverse pm-irradiation positions as a result of massive grassroots activism. In fact, the "cease and desist" letter we received from UFFVA's attorneys specifically mentions Food & Water's Action Alert that targeted UFFVA member, Frieda's, the specialty fruit company that went from promoting Hawaiian irradiated fruits to issuing a statement declaring that they had no interest in the technology as a result of the Action Alert.

Food & Water's late founder, Dr. Walter Bumstein, used to always say that there were two ways to judge effectiveness: by your successes and by the levels to which your opponents will stoop to combat you. In that case, this legal threat is nothing but a testimony to the effectiveness of our Hawaii campaign and our irradiation campaigns in general. Groups like UFFVA don't take these kinds of actions against organizations or individuals that are playing the game the way they want, or that are not scaring the hell out of them. It just would not be necessary.

Constitutional Blunders

Make no mistake, these Food Disparagement Laws, which are already on the books in 12 states and being actively considered in about 20 more, are extremely disrupting in terms of our constitutional rights to free speech. In fact, any lawyers who didn't get their degree from a box of Cracker Jacks should understand the enormous infringements these laws have on our civil liberties and what remains of our democracy. Ifs obvious that the intent of the laws is to intimidate and create a "chilling" effect on all food safety advocates. In other words, the food industry has effectively bought these laws from politicians so that citizens concerned with issues such as irradiation, toxic pesticides, or food biotechnology will think twice before speaking out about the devastating impact such technologies have on the planet and its inhabitants.

The heart of these laws is the clause that calls for all speech regarding food or food technologies to be "reasonable and reliable." But the creators of such laws have conveniently not defined who is to judge what "reasonable and reliable" means. This is what makes these laws such an obvious violation of free speech rights.

If it's the government, or industry for that matter, that is to determine what "reasonable and reliable" means, then we're all in a whole lot of trouble and we better start getting our bail money together. I don't know too many people who are going to take the gargantuan leap of faith required to believe that a government as routinely wrong as ours is going to find the wherewithal to judge what's reasonable and reliable; a government that has repeatedly (and secretly) experimented on its citizens, approved such health disasters as DDT and DES, etc. Since the government relies heavily on scientific information generated by agricultural corporations, in many cases it may be the corporations themselves that determine the "reason-ability" of journalists' and activists' speech.

There is a major difference between laws in which the government's opinion is one among many (thus allowing citizens the right to speak out in opposition), and these new food disparagement laws. In effect, these laws make the government's position on some very controversial and debatable issues the only acceptable position. It's a near fascistic notion that very clearly states that if you disagree with the government's position you could find yourself in court or, eventually , in jail.

Another unspoken goal of food disparagement laws is to shift the burden of proof squarely onto those who have concerns about any given food additive or technology, rather than where it belongs: on the people and corporations seeking to introduce and profit from these unnecessary technologies. Advocates of these laws also ignore the fact that almost all food technologies are approved by the federal government under the rubric of "acceptable risk" statutes that make judgments based on economic benefits versus health and environmental destruction. For example, dozens of carcinogenic pesticides have been approved by the U.S. Environmental Protection Agency not because they are completely safe or benign, but rather because the number of new cancer deaths caused by these toxins is what they believe to be "acceptable" when measured against corporate profits. And the same is true for food irradiation and food biotechnology as well as nearly every other government food additive or process. Under these new laws, it means that you could be sued for merely disagreeing with the government's callous definition of "acceptable" cancer deaths.

Yet another disturbing implication of these laws is that they neglect to take into consideration the cultural or political concerns citizens may have about unnecessary food technologies. Again, take the issue of food irradiation. To many, Food & Water included, food irradiation represents a whole lot more than the very devastating health and environmental effects caused by the specific act of exposing food products to nuclear waste materials. Cultural or political issues such as food irradiation's role in propagating an increasingly centralized, monopolized, and corporatized food supply are basically ruled not germane according to these laws. So if you stand up against food irradiation because of what it will do to small, sustainable family farm operations, or for its insidious connection to nuclear weapons production, or for the simple fact that it allows sanitary and inhumane treatment of animals to flourish, you'd better have a lawyer nearby because you're opening yourself up for a food disparagement lawsuit.

The daddy comical aspect of all this is that the anti-government politicians, who are leading the charge on these new laws, seem blind to the fact that they are handing an unprecedented amount of power to the government they claim to despise. If these laws become entrenched in our political culture, does anyone think it will stop with food disparagement? Next the automobile industry will attempt to pass car disparagement laws, then clothing disparagement, then, probably the easiest one of all to pass, politician disparagement laws.

Full Speed Ahead

So what effect has or will this have on the work of Food & Water? The quick and unequivocal answer is absolutely none. In one sense, given that we are, along with Oprah, a test case for these new laws, we're lucky since so many civil liberties attorneys are chomping at the bit to take on these cases at no charge because of the blatant unconstitutionality of the statutes.

The media attention given to the letter we received from the UFFVA's attorneys has also been unprecedented, giving us an opportunity to explain the dangers and absurdities of food irradiation to many people who we would otherwise not be able to reach. And, should the UFFVA decide to take this to the next step and go to court, the . publicity will only increase and we'll have an amazing opportunity to bring one scientist and citizen after another before the judge and jury to explain just how wacky the idea of food irradiation actually is, all at no cost to us.

When Bill Hargraves of the sinking Vindicator, Inc., the nation's only existing food irradiation facility that has now changed its name to the more benign Food Technology Services, wrote to Hawaii officials to encourage them to pass a disparagement bill of their own in order to "help muzzle the anti's," the irradiation proponents proved once again that they're not too good at strategizing. The first thing Food & Water did after receiving the UFFVA letter was to figure out how to throttle up the campaign and demonstrate very clearly that these kinds of threats would only propel our efforts and infuriate the vast majority of the public that also finds the issue of food irradiation repugnant.

Since receiving the "cease and desist" letter, Food & Water has run very strong full-page advertisements in Hawaii's leading newspapers, produced and ran a 60-second television advertisement on major network television stations in Hawaii. And, since there aren't any known corporations that are currently planning to utilize the proposed Hawaiian irradiator, we've decided to make our current target one of UFFVA's top members, the Dole Food corporation, to send a strong signal to UFFVA that we will not be silenced by their outrageous and unconstitutional tactics.

As the media continues to focus on these ridiculous new laws, we are hopeful that efforts like the UFFVA's against Food & Water will backfire against the entire food industry as the public sees firsthand how far these corporations will go to subvert the democratic process in order to sell carcinogenic and environmentally destructive products. The mantra of the food industry used to be that "die customer is always right" But as consolidation and cutthroat competition have taken over, ifs apparent that the mantra no longer rings true. With food disparagement laws, not only is the food industry ignoring the message of those with food safety concerns, but they're aLso trying to kill the messengers by threatening to haul them into court for having the gumption to disagree with official government policy. And that, my friends, sounds a lot like fascism.

In addition to all the attention the campaign is getting as a result of the UFFVA's actions, there's another silver lining to this wimpy cloud. Should UFFVA decide to go forward beyond a simple "cease and desist" letter and on to court, our attorneys are not only putting together a defense that they're calling "a legal slam-dunk," they're also relishing the opportunity to get access to UFFYA's books, records and documents regarding the group's ill-conceived promotion of irradiated foods. Imagine how much fun it could be to not only uphold our constitutional right to free speech, but also prove once and for all that the government and industry groups like UFFVA have absolutely no proof that irradiated foods are safe for human consumption.

But perhaps best of all will be the opportunity to file a counter-suit against UFFVA for the outrageous infringements on our constitutional right to free speech, a suit that could very well result in a substantial financial victory for Food & Water. Now wouldn't that be interesting - UFFVA funding the anti-irradiation work of Food & Water for years to come...

Go ahead, UFFVA, it's your move.

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