Trial of the Savory

By ADAM COHEN

The more her mad-cow disease guests talked, the more troubled Oprah Winfrey became. Food-safety activist Howard Lyman warned that America's cattle industry was inviting a mad-cow outbreak by its practice of "rendering," or grinding up, cows and feeding them to other cows. "Now doesn't that concern you all a little bit, right here, hearing that?" she asked, eliciting a roar of approval from the audience. With that, Oprah uttered the now famous words: "It has just stopped me cold from eating another burger!" Then a representative of the National Cattlemen's Beef Association conceded that, yes, there was "a limited amount" of feeding cattle to cattle occurring in the U.S. Taken together, all that had an Oprah-size impact. Cattle prices plummeted the day it aired, and kept heading south for two weeks, in what beef traders called the "Oprah Crash" of 1996.

Like any good Americans, the beef industry decided to sue. Texas rancher Paul Engler, who claims he lost more than $6 million, charged in a federal lawsuit that the show's "carefully and maliciously edited statements were designed to hype ratings at the expense of the American cattle industry." Engler's suit against Oprah and Lyman, which went to trial in Amarillo last week, is the first ever under an odd Texas statute--one that forbids food "disparagement" and opens the way for lawsuits when fruits, vegetables or meat are defamed.

Oprah is taping her show in Amarillo during the trial, and local merchants say the combination of trial and talk-show retinues could bring more than $250,000 into local hotels, restaurants and shops. Until now, one of the most popular reasons to visit Amarillo, where a feedlot-slaughterhouse is the single biggest employer, was the Big Texan restaurant, where the 72-oz. steak is free for anyone who can polish it off in one hour.

For all the circus atmosphere, the talk-show diva is dead serious. At issue, she says, is her "right to ask questions and hold a public debate on issues that impact the general public and my audience."

What some critics call "veggie libel laws," arose out of the 1989 controversy over the pesticide Alar. After 60 Minutes ran a report linking Alar to cancer in children, Washington State apple growers sued. After the court ruled in favor of the TV show, the agriculture industry turned its outrage into action. Working with farm lobbies across the country, it campaigned for new state laws lowering the burden of proof for plaintiffs suing over the bad-mouthing of food. So far, 13 states have passed food-disparagement laws, and a dozen other states are considering them.

But does food have civil rights? Yes, food producers say. When charges against a meat or vegetable get picked up by the national media or aired on a show like Oprah's, they can do millions of dollars in damage before the affected industries can respond. As in the case of the Alar scare, when apple sales plunged and apple growers were devastated, real lives are affected. "The states are reacting to the deep frustration of the food industry," says Steve Kopperud of the American Feed Industry Association. "Farmers and ranchers are not faceless corporations--there is a human element to this."

Critics of the new laws, who once chuckled over them, are now worried that they chill warnings about food safety. "The statutes at first were regarded as quirky and weird, but they are an area where First Amendment rights are bumping up against commercial interests," says Emory University law professor David Bederman, who tried unsuccessfully to challenge Georgia's food-disparagement law. If such laws had existed in the 1960s, environmentalists say, people would have been afraid to criticize the pesticide DDT, which was considered safe until it was proved to cause cancer and then banned in the U.S. "Going back to Upton Sinclair and The Jungle, a free and open discourse about food safety has been critical," says Lawrie Mott, a senior scientist with the Natural Resources Defense Council and one of the authors of the Alar report. "With each of the major debates, we have seen reforms emerge."

The days when spinach, liver and other unpopular foods could be mocked with impunity may be past. Not surprisingly, other aggrieved vegetable and meat producers are lining up to sue. The nation's second food-disparagement suit, also to be tried in Amarillo, pits emu farmers against the Honda car company. The farmers say the emu was slammed by a commercial featuring a hucksterish emu rancher who promotes the ostrich-like bird as "the pork of the future." The ad never calls emu meat unsafe, but Fort Worth attorney John Scott says its portrayal of the birds as disreputable has dealt his clients a hard blow. In these litigious times, insult an ugly, flightless, 6-ft.-tall bird, and you may have to answer for yourself in court.