Remember when Oprah got sued for badmouthing beef? The lawsuit used Texas' "agricultural product disparagement law." Several states have similar laws (nicknamed "Banana Laws" or "Broccoli Bills"), intended to silence those who may spur public critique or concern about food. Here's a new case that illustrates why these laws should NOT exist:
Several weeks ago, I wrote a diary about fake organic milk that you can find at Walmart, Costco, Safeway, and Target. The milk comes from Aurora Dairy, and the USDA finally cracked down on them for their bogus factory farmed organic milk.
Aurora's response? Threatening to sue the watchdog groups that caught them. Thank goodness for those broccoli bills.
Brief Recap: Fake Organic Milk
According to the Cornucopia Institute, Aurora violated organic standards in the following ways:
- Aurora was not allowing their animals access to pasture
- Aurora brought in animals from a non-certified contract heifer ranch
- Aurora converted animals from conventional to organic production when the regulations (because of their initial 80/20 conversion) prohibited that.
- And Aurora purchased organic feed for their Texas operation from a friend of the dairy manager who had sprayed his crops with herbicides during transition.
The USDA responded by threatening to revoke Aurora's organic certification. As of now, Aurora and the USDA reached an agreement requiring Aurora to clean up their act. If they do, they can keep their organic certification.
Aurora's Revenge
According to The Cornucopia Institute, Aurora sent letters to The Cornucopia Institute, The Organic Consumers Association, and the Center for Food Safety threatening to sue them
if they did not retract statements they had made concerning Aurora and refrain from filing a lawsuit against Aurora alleging consumer fraud.
"Aurora's legal threat, what public interest groups typically referred to as a SLAPP lawsuit (Strategic Lawsuit against Public Participation), will not intimidate The Cornucopia Institute, our Board of Directors, or our members," said Mark Kastel Codirector of the Wisconsin-based farm policy research group.
Aurora's accusing the three public interest groups of "defamatory statements" - even though those statements have been confirmed by an almost 2-year investigation by the USDA. Cornucopia has issued statements that they won't back down, as has the Organic Consumers Association:
The nation's largest public interest group representing the interest of organic consumers, the Organic Consumers Association, issued the following statement, "Aurora Dairy is obviously concerned that we have been communicating with our membership in preparation of potentially filing a consumer fraud class action suit. Their attempt to intimidate our organization will not impact our work," said Ronnie Cummins, the group's director.
My favorite statement comes from Mark Kastel of The Cornucopia Institute:
"Since filing a lawsuit against our groups could force Aurora to open up their record-keeping for examination, and require their officers and employees to give depositions regarding the disputed facts under oath, we would be surprised if they would expose themselves to that kind of scrutiny," said Kastel. "The secret weapon that we have if they decide to file suit against us is the wealth of testimony and research we secured from private, independent third parties prior to filing our legal complaint. Our research points to the same conclusion that the USDA's independent investigators found--'willful violations of the organic foods production act of 1990'."
SLAPP Suits
In addition to this particular instance (which is both infuriating and funny because it looks like Aurora doesn't stand a chance of winning a lawsuit), we should also look at the larger issue of SLAPP suits in general. At least 13 states have agricultural product disparagement laws - Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota, and Texas. Mad Cow USA by Sheldon Rampton and John Stauber explains these laws as:
instead of corporations being forced to prove their critics wrong, food critics could be judged guilty unless they could prove what they had said was correct.
One major problem with these laws - in addition to the chilling effect they have on free speech - is explained well in this quote from Mad Cow USA:
"If I say that hogs kept in confinement are being cruelly treated, am I making a mistake of fact?" asked farmer and Illinois law professor Eric Freyfogle, explaining his opposition to the legislation. Indeed, I am not. What I'm talking about is a matter of ethics. I may view as unethical behavior that which someone else finds entirely reasonable."
He goes on to discuss ambiguity in proving "safety" scientifically:
"Take the case of bovine growth hormone... Am I wrong if I assert that its use is unsafe? The answer depends, I submit, entirely on how we define safe, which has less to do with facts than with our standard of evaluation. Do we know whether it is fully safe for humans to drink milk for 40 years from a cow given such hormones? The answer, plainly, is that we do not, no one knows, because no one has ever done it"
Aurora looks like it doesn't stand a prayer of a chance in this one, but that obviously didn't stop them from trying to silence their critics. Often companies will sue knowing full well they will spend big bucks and most likely lose, just because they deem it worthwhile to bankrupt their opponents from legal fees and show future critics "Don't mess with me!"
Still, whether Aurora sues or doesn't sue, wins or loses, "Broccoli Bills" have got to go.