Mind How You Disparage Asparagus or Berate Broccoli

Former President George Bush may hate broccoli, but he’d better not bring it up again in Ohio, which passed a bill last week allowing farmers to sue critics who make false claims about their products.

Passage of the measure, which is expected to be signed by Gov. George Voinovich, has refocused attention on one of the more peculiar consumer / regulatory issues of recent times: the cropping up, around the nation, of state statutes known informally as “veggie libel laws.”

Under the technical name of agricultural disparagement bills, such measures have now become law in 12 states. “They’re growing like weeds, mainly in agricultural states,” said Al Meyerhoff, a San Francisco-based attorney for the Natural Resource Defense Council, which helped defeat a veggie libel bill in Sacramento last year.

“You cannot bad-mouth broccoli in those 12 states--well you can, but you can get sued for it,” said Meyerhoff, who added that support for the “veggie hate crime bills” is coming from a coalition of agriculture and chemical industry interests. He and other critics believe the laws are unconstitutional, though no one apparently has yet challenged them in court.

At the American Farm Bureau Federation in Washington, D.C., spokesman Dennis Stolte insists that the laws are not enacted to go after people with legitimate criticism of the food supply, but are targeted at “environmental extremists who would like to see the use of all pesticides end . . . or pseudo scientists like Meryl Streep.”

“Strategically, it is an offensive versus a defensive move,” he said. “The farmers are tired of being kicked around through claims not based on science.”

Both sides agree that the laws were inspired by the Alar imbroglio. In 1989, the NRDC released a report linking the chemical spray Alar with cancer risks. The study was later picked up by CBS for a “60 Minutes” report, and growers claim they lost upward of $100 million in sales. A lawsuit brought by Washington state apple growers against CBS was eventually dismissed by a U.S. appeals court.

“After the growers lost their suit in court, they felt the need to protect themselves against false claims about the safety of their products,” Stolte said. “In many states they turned to the state legislators because there they would get a sympathetic ear.”

He doesn’t know if the new laws would pass a constitutionality test. “Our position is that they surely can’t hurt,” he said, “and they are a way for farmers to stand up for their enterprise and keep providing the safest, most wholesome food supply in the world.”

Although press coverage, and even the legislative hearings, have lent themselves to light remarks about “beeting the opposition” and “squashing the critics,” environmental and consumer groups are concerned that such laws could have a chilling effect on public debate of food safety issues.

At last count, states that have passed agriculture disparagement laws are Arizona, Florida, Louisiana, South Dakota, Mississippi, Colorado, Idaho, Georgia, Alabama, Texas, South Carolina and Ohio. The Western Growers Assn., which unsuccessfully sponsored the bill in California last year, will “reintroduce it this year and every year until it is passed,” said spokesman Jasper Hempel.

At the Washington-based Environmental Working Group, which focuses on monitoring the nation’s food supply, analyst Curt Davies compares the veggie laws to the so-called SLAPP (Strategic Lawsuits Against Public Participation) suits, which are intended to stifle debate on policy issues. “The veggie laws basically say you cannot say anything that is knowingly false about a perishable food item,” he said, “but the way they are worded, is just vague enough to make them usable as threats.”

And while his group, like most environmental organizations, has lawyers on the staff who can tell the laws don’t have legal teeth, grass-roots groups are more vulnerable to lawsuits brought under the measures, he said.

Tom Newton, general counsel for the California Newspaper Publishers Assn., agrees. Not only would such a law have a substantial chilling effect on the public debate of food safety issues, it could also affect the reporting of such issues, he said. His organization, with the NRDC, ACLU and other groups, opposed the measure in California on a number of grounds, including its definition of “false statement” as one that is not based on “reliable scientific fact.”

“Who knows what the hell that is?” Newton asked. “Scientists say there is no such thing as reliable scientific fact, that science is based on hypothesis and conclusions, and is ever-changing.”

Environmental groups are concerned that the laws are spreading at a particularly bad time. Said Meyerhoff: “Today, most of the issues being raised are about toxic contaminants of some sort, or questions about genetically engineered foods or whether there are adverse effects by giving cows growth hormones to produce more milk. When you talk about food quality, we are going to have multiple opinions, but these agricultural interests want to shut everybody up.”

The new laws have not yet been tested. “What they actually propose to do is anybody’s guess,” said Paula Carrell, states program director for the Sierra Club. “They don’t prescribe what the penalty will be. I think they are ripe for being challenged on constitutional grounds, but I don’t know if they are being taken terribly seriously.”

In the meantime, vegetable-haters are advised to think twice before sounding off on spinach, or accusing someone of being “pea brained.”