It looked for a while as if ?veggie-libel? laws were dead, but now conventional dairy interests have resurrected the charge of ?food disparagement? in disputes over the labeling of milk and other dairy products as being free of recombinant bovine growth hormone.
The history of veggie-libel laws stretches back to 1989, when 60 Minutes broadcast a report depicting Alar, a chemical used in apple orchards, as a carcinogen. Apple growers filed a defamation lawsuit, which was dismissed on the grounds that the report had targeted apples, not apple growers, and that a fruit could not be defamed.
In response to the Alar case, 13 state legislatures passed agricultural disparagement laws, making it a crime to impugn the safety of a perishable food. A May 5, 1997, article in the National Law Journal suggested that since scientists often disagreed on food safety issues, the burden of proof would be on those who alleged food health risks to prove that their statements were not false.
The National Cattlemen?s Association put one of these laws to the test by suing Oprah Winfrey over a 1996 episode of her show in which a guest suggested that beef-eating Americans were at risk of contracting mad cow disease. Texas ranchers alleged that the guest?s comments and Oprah?s response (?It has just stopped me cold from eating another burger!?) caused beef futures to drop, costing them $11 million. When a jury found Winfrey innocent and a federal court dismissed the cattlemen?s appeal, many observers assumed the issue had been put to rest.
As attorney Kathleen Kirby pointed out in a 1998 article for Communicator magazine, ?Veggie-libel laws undermine the First Amendment?s guarantee of free speech, which should broadly protect open discussion of issues of key importance to the public. And if the food supply isn?t a matter of import to the citizenry, then what is??
However, with the laws still on the books in a number of states, and the courts refusing to rule on their constitutionality, the veggie-libel issue has moved back into the limelight in the form of lawsuits over the proper labeling of rBGH-free milk.
When the U.S. Food and Drug Administration approved the use of rBGH in 1993, it allowed dairies that decided to abstain from its use to label their milk as rBGH-free. At the same time, FDA recommended that those dairies add a disclaimer on milk cartons that emphasized ?no significant difference has been shown? between milk from rBGH-treated and non-rBGH-treated cows.
At first some dairies tried to label their milk ?hormone-free,? but Monsanto Co., one of the main producers of rBGH, sued to stop this labeling practice on the grounds that all milk contains hormones. The FDA has continued to keep tabs on the issue, threatening four dairy manufacturers with seizure or injunction in 2003 if they did not stop labeling their milk as ?hormone-free.?
Echoes of the veggie-libel laws have arisen over a more subtle disagreement between Monsanto and those dairies that stuck to the requirements of the FDA law while avoiding the recommended disclaimer. Dairies not using rBGH argued that as long as their labels were truthful, they did not need to go into further detail. Also, despite the FDA?s approval of hormone additives, some dairies felt that rBGH presented significant risks to cows and humans and were thus reluctant to label their milk with a disclaimer that they did not believe.
?Personally and professionally, I don?t believe it is true that there is no difference between rBGH-free milk and milk that comes from cows treated with rBGH,? says Theresa Marquez, vice president of marketing for Organic Valley Family of Farms and president of the Organic Center for Education and Promotion. ?Are you going to tell me that an athlete [who] takes steroids is the same as an athlete that doesn?t? That?s the same thing as saying that milk from cows treated with extra hormones is the same as milk from cows that have not been treated.?
That?s exactly what Monsanto and its ally, the Center for Global Food Initiatives, are saying with their ?Milk is Milk? campaign. In 2003, Monsanto sued Oakhurst Dairy, a Maine producer that had been labeling its milk as free of artificial growth hormones. Monsanto claimed that the labeling implied that milk without added growth hormones was somehow superior.
Observers say Oakhurst spent $300,000 defending itself before settling the case out of court and agreeing to add a disclaimer to its cartons, which now read, ?FDA states: No significant difference in milk from cows treated with artificial growth hormone.?
Marquez thinks that Monsanto and its ?Milk is Milk? allies doth protest too much. ?There must really be something wrong [with rBGH] for them to go to such great lengths to try to show that there is no difference,? she says.
But the protests are having a ripple effect. When Wild Oats Markets introduced private label rBGH-free natural dairy products in 2003, it added the ?no significant difference? disclaimer to its packaging.
Mary Mulry, Wild Oats? senior director of research, development and standards, says the company based its decision in part on a wish to avoid the legal fights that companies like Oakhurst and Ben & Jerry?s had encountered over their rBGH-free labeling.
?On the federal level, the FDA just says we can?t make false and misleading statements, but individual states claim that we need this required disclaimer. We sell in 22 states, and we cannot have dairy packaging with different language in each of these states,? Mulry says. ?We are taking what I would call the most conservative position to meet regulations. We know that if we put on this disclaimer, we are not going to have any issues with the government.?
That said, Mulry adds Wild Oats is proud to offer rBGH-free dairy products. ?It?s important to give consumers a choice,? she says. ?We don?t support use of genetic engineering and we want to highlight the fact that our producers don?t use it.?
Ronnie Cummins, national director of the Organic Consumers Association, believes the disclaimer ?is unnecessary capitulation in the face of strong-arm tactics that are not legally justified. ?Milk is Milk? is ? trying to discredit the organic industry because the industry is growing by leaps and bounds, while the general public becomes more and more concerned about antibiotic residues and growth hormones.?
If that really is the strategy, it may be backfiring. Marquez believes the disclaimer campaigns just raise awareness of rBGH among consumers who might not have been paying attention to the issue before.
Maybe that?s why Katherine DiMatteo, executive director of the Organic Trade Association, seems to be taking the issue so calmly. ?There are definitely organizations and companies that are interested in maintaining a steady stream of information out there that will raise questions or doubts and damage consumer confidence in the organic label,? she says. ?Still, we as an industry have to not overreact to any of these [provocations] and get into public shouting matches that would give these campaigns more credibility than they deserve.?
Instead, DiMatteo and others in the organic community believe the best way forward is to maintain a steady stream of positive news about organics. That?s why the OTA created the Organic Center for Education and Promotion to fund research into the environmental and health benefits of organic products.
DiMatteo believes such research will allow organic proponents to talk about the advantages of organics, rather than just contrasting their products against conventional agriculture. ?People ask us, ?How are you different from conventional?? I would rather have someone ask, ?How is conventional different from you???
Aaron Dalton ([email protected]) is a freelance writer in New York.
Natural Foods Merchandiser volume XXVI/number 3/p. 54