“Pink slime” or lean finely textured beef? Food defamation trial set to begin – The Denver Post
Opening statements in what could be the largest defamation case in U.S. history are set to begin Monday in a South Dakota courtroom.
In suing ABC News for its coverage of a widely used processed-meat product that the news organization and others have branded “pink slime,” Beef Products Inc. claims it was a victim of a journalistic hit job. The family-owned South Dakota meat processor claims the reporting reduced its revenues.
Raising the stakes is a state food-disparagement law that allows prevailing plaintiffs to triple actual damages. Beef Products has alleged $1.9 billion in damages. That means, in theory, ABC could be hit with a nearly $6 billion judgment, not including any potential punitive damages awarded if it were to lose.
ABC, a unit of Walt Disney Co., says it never reported anything about the beef that it knew to be a lie and contends Beef Products is trying to punish it for making reasonable editorial judgments.
The case will go before a 12-person jury at a time when opinion polls have shown declining trust in the media. In court documents, Beef Products has referred to ABC’s coverage as “fake news,” a term, widely used to describe scurrilous internet reporting, that has broadened in use since the 2016 presidential election.
“This was the opposite of fake news,” said ABC lawyer Kevin Baine, a First Amendment attorney at Williams & Connolly LLP. “It was real news of interest to consumers who didn’t know this product was in their ground beef.”
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ABC’s first segment on the product aired March 7, 2012. Then-“World News” anchor Diane Sawyer opened it telling viewers: “A startling ABC News investigation, a whistleblower has come forward to tell consumers about the ground beef a lot of us buy at the supermarket. Is it what we think it is?”
In the report, national correspondent Jim Avila, a defendant in the case, described the company’s meat product as pink slime made from “beef trimmings…once used only in dog food” and “sprayed with ammonia to make them safe to eat and then added to most ground beef as a cheaper filler.”
In the ensuing weeks, ABC followed the segment with several more broadcasts and more than a dozen online stories about the beef, reporting on the fallout for Beef Products.
The company filed suit later that year, accusing ABC of creating a false impression “that BPI’s product was not beef or meat, had little or no nutritional value, and was not safe to eat.”
Beef Products says the product, called lean finely textured beef or LFTB, is merely the result of discovering how to extract more lean beef from cows. Approved by the U.S. Department of Agriculture in 1993, LFTB is made from beef trimmings put through centrifuges to remove fat. Some LFTB is treated with tiny amounts of ammonia gas to kill pathogens.
In the wake of ABC’s reports, Beef Products says its sales plummeted and ground-beef processors canceled orders in droves, forcing the company to lay off 700 workers. Less than three weeks after ABC’s first report, Beef Products suspended operations in three of its four processing facilities.
The company says ABC relied on biased experts and intentionally omitted accurate and more positive information about LFTB’s safety that Beef Products tried to communicate to ABC before the segments aired.
“There is not a shred of evidence, let alone clear and convincing proof, that ABC intended to convey the message that LFTB is ‘unsafe for public consumption,’” ABC lawyers stated in a court filing, noting that its coverage repeatedly specified that LFTB is “safe to eat.”
In addition to its defamation claims, Beef Products is suing under South Dakota’s Agricultural Food Products Disparagement Act, which imposes liability for knowingly publishing false information that asserts or implies that an agricultural food product isn’t safe for public consumption. South Dakota is among more than a dozen states that have enacted “food libel” statutes intended to shield the food-production industry from bogus safety scares.
To prevail, Beef Products will have to show that ABC acted with actual malice, meaning it must prove that the news organization either knew the information was false or recklessly disregarded the truth.
“There is vast proof of ABC’s actual malice,” the company’s lawyers wrote in court papers, quoting an email from an ABC producer saying he was “[b]usy putting pink slime makers out of bidness [sic] today.”
ABC says the email was taken out of context.
At trial, lawyers are likely to focus significant time on the meaning of the word “slime.”
“There is not a more offensive way of describing a food product than to call it ‘slime,’ ” stated Beef Products’ lawyers. The company counted 137 instances in which ABC used the phrase “pink slime” in broadcasts, online reports and social media postings
ABC said in a court document that slime may be an unflattering word choice, but it is “the kind of ‘imaginative expression’ and ‘rhetorical hyperbole’ that is constitutionally protected.”
The trial in South Dakota is expected to run through July. The courthouse in Union County built a new courtroom in the basement that could accommodate all the lawyers and spectators expected to attend.
Lawyers for ABC had sought to bar any video and audio recording of the trial. In March, Circuit Court Judge Cheryle Gering permitted use of an audio feed.
Dow Jones and several other media companies told the South Dakota Supreme Court in March that if it granted a request by ABC and Mr. Avila to review the case, they would submit an amicus brief in support of the defendants. The court declined to hear the appeal.
In recent years there have been a number of high-profile cases against media organizations. Some have fared well.
Gawker Media was forced into bankruptcy last summer after it lost an invasion-of-privacy suit brought by the former professional wrestler Hulk Hogan. Rolling Stone magazine last year lost a libel lawsuit related to a discredited 2014 story about an alleged fraternity gang rape at the University of Virginia.
“It’s not a great time to try a libel case in front of a jury,” said George Freeman, executive director of the Media Law Resource Center.