Oprah's biggest beef

BSE was the subject. 'I'll never eat a hamburger again' was her comment. The result? A precipitous fall in meat prices. The multi-million dollar question now? Has an American the freedom to say what she likes or can she be sued for libelling a foodstuff? By David Usborne

Mention bovine spongiform encephalopathy - or mad cow disease - in Europe and the images that float forth are of animals doing the splits on concrete or of piled-high carcasses awaiting incineration. Mention it in America and quite likely people's first thoughts will be of Oprah Winfrey, the talk-show queen.

This has nothing to do with what the viewing masses think of her; few television personalities are more adored here than the slimmed-down Ms Winfrey. But publicity is swirling about a comment she made on one of her shows last year and the very considerable, and somewhat remarkable, legal mess it has put her in. Ms Winfrey is in clear and present danger of becoming the first defendant ever to face charges of slandering a foodstuff.

The programme in question was aired on 16 April 1996, when the BSE scare in Britain was at its height. The issue of the day was simple: even though no single case of mad cow disease had been uncovered in the United States (as remains the case now), could it eventually strike the American beef industry? The answer, according to Ms Winfrey's main studio guest, was an unequivocal "yes".

What Howard Lyman of the Humane Society's "Eating With Conscience" campaign had to say was certainly unsettling. He pointed out that the practice of feeding live cattle with the ground-up remains of deceased animals, identified in Britain as a probable factor in the spread of BSE, had also been prevalent in the US for years. (A federal ban on carcass-recycling starts next month).

"One hundred thousand cows per year in the United States are fine at night, dead in the morning. The majority of those cows are rounded up, ground up, fed back to other cows. If only one of them has mad cow disease, it has the potential to infect thousands." Ranchers, he went on, had not just turned cows into carnivores, they had "turned them into cannibals".

When Mr Lyman, a rancher-turned-vegetarian, had finished his pitch, Ms Winfrey turned to her audience and prompted loud applause by declaring: "It has just stopped me cold from eating another burger."

What Ms Winfrey also prompted, however, was a precipitate dive in beef futures on the commodities exchanges and a collapse in US beef prices that lasted for two months. In the cattle industry, 16 April became known as the day of the "Oprah crash". One rancher, Paul Engler of Amarillo, Texas, calculated that the Winfrey show cost him $6.7m. Now he is going to the courts for a refund.

Mr Engler is a formidable foe. His cattle-fattening operations in Texas, called Cactus Feeders, boast annual revenues of about $650m. When he began to make a stink about Ms Winfrey's remarks, Texas began to notice. Pick- ups across the state now carry the bumper sticker, "The Only Mad Cow in America is Oprah". More importantly, however, Mr Engler initiated a class- action suit against Ms Winfrey, her producers and Mr Lyman that should go to the federal court in Amarillo next month. The defendants stand accused of defaming burgers and, more to the point, their principal ingredient, beef.

It is tempting to view the case as frivolous. Libelling a person, we know, can land you in court. And it is equally obvious that disseminating false information about a specific consumer product can be punishable with huge fines. But since when has it been possible to sue a person for bad-mouthing a food? I, for one, don't remember worrying about the legal consequences the last time I said yuck to tapioca.

But Mr Engler has done his research. In recent years, 13 American states, including Texas, have passed sweeping food disparagement laws. Critics of the laws have dubbed them "banana bills" and "veggie libel laws". But whatever you call them, the new laws provide agri-business interests with a potentially devastating weapon to silence anyone who dares to challenge a particular foodstuff or farming practice on health or even ethical grounds.

"The idea that an activist group with the price of a full-page ad can feed the public misinformation about a food product as part of a political agenda is being challenged," a newsletter of the Animal Industry Foundation recently concluded.

The genesis of these laws was an item carried by the CBS news magazine 60 Minutes in 1989 on the so-called Alar scare. Alar was a chemical sprayed by orchards on apples which some scientists believed could lead to cancer, particularly in cases where the apples were eaten by the young. Subsequently, the link between Alar and cancer could not be proved and apple growers from the American north-west tried to sue CBS. They failed. Sympathy for the growers led to the drafting of the new laws.

Not only do the food disparagement laws exist - and several other states expect to pass their own versions soon - but they are actually tougher than those for traditional libel. Whereas plaintiffs in normal libel suits must demonstrate that the defendant knowingly defamed the person or product, under the food laws as drafted in most states, it is simply enough to have said something disparaging and false about the food. Whether you, the defendant, knew that you were uttering a falsehood is irrelevant.

The Amarillo trial will be closely watched, and not just because of the celebrity factor. It will be the first test of the new laws. The food industry will be deeply anxious to see the suit succeed. If it does, expect other such actions. One fruit and vegetable association, for instance, recently sent a "cease and desist" notice to a Vermont environmentalist group which is leading the fight against food irradiation. The message was clear: persist with the campaign and we will level food-disparagement claims against you.

Some legal experts, however, believe the suit will fail because of the clash between the new laws and constitutional rights of free speech. The shift of the burden of proof from plaintiff to the defendant in these laws means that their constitutionality is certain to come under the microscope. David Bederman, a law professor at Emory University who has followed the flowering of the laws, recently described them as "flagrantly unconstitutional". But Kevin Isern, a lawyer for Mr Engler, is unperturbed. "We're not trying to restrict anybody's right to free speech," he insisted. "But free speech has to be correct speech. I think there is still a duty on the part of the talk shows to report what the truth is."

The allegation lodged against Ms Winfrey and her co-defendants is blunt. The complaint, filed last June, says that the show's "carefully and maliciously edited statements were designed to hype the ratings at the expense of the American cattle industry". With speculation rising that Ms Winfrey may attempt an out-of-court settlement, neither she nor her production company will comment on the case.

Mr Lyman, whose comments on the Oprah show 15 months ago triggered the whole affair, is unrepentant, however. "When you say something you can prove to be true, you shouldn't have to worry about the sky falling in on you. I did not say these things without giving it a considerable amount of thought. I will stand by what I said on the show."

If Mr Lyman and his more famous co-defendant triumph in Amarillo, the food disparagement laws may wither as quickly as they sprouted. In the meantime, however, some advice to any unsuspecting Europeans planning a holiday in the United States this summer. If you have the urge to say something beastly about the food here (especially if it is the burgers), do yourself a favour: keep it to yourselfn