Is It Time For Grain-Based Foods To Consider Litigation? | 2021-03-02

In years of industry discussion about how to tackle grain-based food defamers, the use of litigation as a weapon is rarely, if ever, discussed. While industry executives may be disgusted by the misinformation spread in books, magazines and websites defaming the bread and other products of the industry, an aversion to legal action, however carefully studied, can be understandable. Defamation lawyers are quick to point out that defamation cases tend to be much easier to defend than to prosecute. Industry executives may be reluctant to prosecute potentially long, expensive, and difficult cases.

On the other hand, the adversaries of the industry do not feel such reluctance. For years, bakers have been the subject of litigation. Whole Foods was recently sued for allegedly misleading labeling on graham cracker packaging. Flowers Foods, Inc. has agreed to change the labeling of its Wonder White bread made with whole wheat in “cooperation” with the Center for Science and the Public Interest. CSPI is proud of its success in “wielding the power of litigation”.

The prosecution of a misleading labeling case is different from a libel or defamation case, but a recent development in the political arena has highlighted the potential power of defamation litigation. Between this episode and the many state libel laws favoring the food industry, grain-based food companies should take note.

Of particular interest are the aftermath of the “Don’t Steal the Vote” episode and the allegations that a conspiracy involving Dominion Voting Systems illegally led to millions of Donald Trump’s votes being transferred to Joe Biden by voting machines. When it comes to spreading unfounded or false political narratives, no side of the political spectrum is blameless. In addition to the “Don’t Steal the Vote” campaign, other examples include QAnon’s accusations, the Steele dossier, and media descriptions of a meeting in Washington between a teenage Trump supporter and a Native American.

In the case of the election, Smartmatic USA Corp., which provides software for the Dominion’s voting machines, sued many parties who advanced an unsubstantiated theory that the machines altered votes. Alleging libel and disparagement, Smartmatic is suing Fox News for $ 2.7 billion, saying the reports have hurt the company’s business prospects. Fox calls for dismissal.

What’s interesting about this case is how quickly the litigation or the threat of litigation seemed to trigger a powerful rhetorical withdrawal from the media that had repeated the allegations of massive voter fraud. In Fox’s case, the lawsuit was quickly followed by a decision to abruptly cancel a popular show. Other networks threatened with legal action have backed down on their allegations of electoral fraud.

The fact that the lawyer Smartmatic hired was J. Erik Connolly of Chicago illustrated the increased interest in grain-based foods. Mr Connolly was lead counsel in 2012 in a $ 1.9 billion lawsuit filed against The Walt Disney Co. for its ABC News network’s use of ‘pink slime’ as a term for lean beef. finely textured, a product manufactured by Beef Products, Inc., now doing business as Empirical. To the amazement of legal experts who expected Disney to win, this case was settled in 2017, just as a trial was due to begin in South Dakota. A Wall Street Journal article at the time noted that because the state of South Dakota has a food libel law that provides for triple damages when defendants knowingly lie about the food product, Disney may have had greater motivation to settle. Applicable in 13 states, defamation law offers protections against defamation that may be easier to prove than traditional common law commercial defamation.

Could judicious use or the threat of litigation benefit grain-based foods? Could it have a chilling effect without unnecessarily stifling freedom of expression? White bread, crackers and cereal for a children’s breakfast are not “empty calories”. Characterization is an example of a derogatory lie. Yet major publishing houses publish articles using this term explaining it as high calorie foods with no nutritional benefit. The remarkable and powerful instantaneous effect of the Smartmatic lawsuit suggests that prudently considered litigation is an instrument that grain-based foods should consider adding to its toolbox.

About Cedric Lloyd

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