Sponsor Of Texas Ag Libel Law
Says Judge’s Position Correct

By David Bowser

There were groans in the beef industry when U.S. District Judge Mary Lou Robinson threw out the 1995 Texas False Disparagement of Perishable Foods Products Act as a cause of action in the lawsuit brought by cattlemen against television talk show host Oprah Winfrey.

Judge Robinson drew a distinction between perishability and marketability, and said the law did not apply in that case. Her ruling left the cattlemen with only a business disparagement common law case, which was much harder to prove. The lawsuit, of course, ultimately failed, whereas some jurors’ comments suggest it might well have succeeded under the original charge.

Cattlemen argued that the judge was mistaken, but it turned out she is right, says the man who wrote the law.

State Representative Bob Turner, D-Voss, author and original sponsor of the so-called "veggie libel" bill, says he isn't surprised by Judge Robinson's actions. He says he never considered cattle protected by the act. While the law specifically mentions meat, it does not mention livestock.

"The law is pretty specific in that we talk about perishable product," Turner says. "To me, perishable product would be the beef itself, not the live cattle on the hoof."

However, the case has made him reconsider the act, and he says it most likely will be amended during the next legislative session. Turner says that is not an unusual situation.

"I look at everything I've ever done at the next session," he says. "Most legislation has to be tinkered with a little bit, everything from this to landowner relief from liability for guests this last session. We're probably going to have to tinker with it a little, too. It's rare that you don't have a major piece of legislation that you don't go back and tinker with at some future date."

While he did not consider cattle perishable initially, Turner says that at a point in the production of beef, he would agree that some are.

"I would say that livestock is perishable," Turner says. "Feeder livestock is not. I didn't appreciate that, and she picked up on that."

He says such a distinction needs to be made and more clearly defined.

"I see stocker and feeder livestock as not being perishable, per se, in the strictest sense," Turner says. "I would say that fat livestock coming out of a pen, be it hogs, lambs or cattle, is a perishable product. They immediately lose value, and your feed costs continue to go up more. It does become perishable in that sense."

He says the law should differentiate between stocker and feeder cattle and fat livestock.

"I would say that is the defining factor, and maybe we need to more clearly define that," Turner says.

When he wrote the law, he explains, he simply meant any agricultural product that is perishable.

"It takes a year or more to produce this stuff," he notes, "and it's only good for a matter of days or weeks. I think ag producers need some sort of safety net there. God knows the environmental activists of the world are certainly not going to help us provide that safety net."

Turner says that was his reason for creating the law.

"It had nothing to do with lawsuits, really," he says. "It was to make people more aware of the need for being responsible when they made remarks, or accepting responsibility for what they said. I think we've accomplished that to a great degree. We have raised the level of awareness that people need to be pretty cautious about what they say when they know it not to be a fact."

The major opposition to the law has to do with the First Amendment and free speech, Turner says.

"But you cannot yell 'bomb' in an airport or 'fire' in a crowded theater when there's not one," he says. "There needs to be some factuality. Both Oprah and her guest knew that there were no cases of mad cow disease in the United States and that the human problems in Europe had not been linked directly to mad cow disease at the time."

The cattlemen who sued Winfrey say they are going to appeal the judge's ruling, at least in part, on her decision to throw out what has become known as the veggie libel law. The defendants in the case say they will base their response on constitutional First Amendment rights.

In her ruling, the judge did not declare the veggie libel law unconstitutional, but did rule that the cattlemen failed to make their case under it. Turner says the judge's ruling will have little impact on the law, the need for the law, or its applicability.

"The law is still on the books," he says. "It's still good. Under the right circumstances and if the right criteria are met, I think we still have a viable law and a viable case."

And the case could still end up before the Supreme Court and set a precedent. That is important, not only for the two parties in the case, but for the 13 states that have such food disparagement laws and the other states that are considering them.

Food disparagement laws exist in Texas, Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma and South Dakota, and similar legislation is pending in eight other states. What the courts decide in this case will set the standard for future legislation.

Under the Texas law, a person can be held liable if he disseminates in any manner information relating to a perishable food product to the public, knowing the information is false and the information states or implies that the perishable food product is unsafe for consumption by the public. According to the law, the truth of a statement will be decided on whether the information is based on reasonable and reliable scientific inquiry, facts or data.

Turner continues to stand by the law he wrote.

"I am in production agriculture myself, so I guess I am probably more responsive to what agricultural producers want," says Turner, who formerly was a vice president in the Texas Farm Bureau.

It's too soon after the case's conclusion, Turner says, to be specific about any changes he may introduce in the next legislative session, but he says he does intend to examine the bill and consider whether or not cattle and other livestock should be included.