Food, Inglorious Food: Food Safety, Food Libel, and Free Speech

Abstract

Recently, the movie Food, Inc. exposed issues about the food production industry in the United States. That Oscar-nominated documentary included a scene in which a mother, whose child had died from food-borne illness, explained that she could not criticize the food industry without risk of being sued. The risk to which she alluded stems from special legislation against criticism that agriculture and food production enjoy in 13 U.S. states. In the late 20 century, Oprah Winfrey successfully defended one such case under the Texas food libel law based on a show she aired on cattle management. The other states with food libel laws are Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma and South Dakota. Of these, only Colorado criminalizes food disparagement. The rest establish civil liability and are the focus of this analysis. At the same time the foregoing states are protecting agri-business from criticism, the 21 century has seen a significant increase in health concerns related to food. According to the U.S. Centers for Disease Control and Prevention, 48 million people in the United States get sick, 128,000 are hospitalized, and 3,000 die each year from food-borne diseases. In response to these concerns, the United States adopted a new federal food safety law in January, 2011. Among other things, the law includes whistleblower protection for employees in food production who complain about food safety issues. These new whistleblower protections could directly contravene provisions of state food libel laws that stifle such complaints. Potentially, the new federal law reflects a national public policy about food safety and debate that state food libel laws contradict. This paper analyzes the impact of food disparagement statutes in the United States. First, the paper examines the scope of liability under the twelve civil food libel laws. Further, the analysis considers the reach of the laws to determine what constitutes a violation of the law ―within‖ each relevant state with a food libel statute. This analysis considers whether health and safety statements published in states without food libel laws can become actionable in any state with a food libel law. If so, the effect could be to elevate the laws of twelve states to national food debate policy. Next, the paper discusses the new federal food safety law. In particular, this analysis discusses how whistleblower protections in new federal food safety law affect the enforceability of state food disparagement laws. Finally, paper concludes with analysis and recommendations for future research regarding food debate, food safety and the role of state laws.