August 12, 2010
Should I Tell You If I Think This Salad is Unhealthy?: Food Disparagement Laws and Chilled Speech
Another packaged salad has been recalled by Fresh Express. This may not seem as if it presents a constitutional issue, but perhaps it does.
Suppose I think three recalls in four months is pretty extreme and I start saying things like
"packaged salad is inherently unhealthy."
I am not really saying that; it is a hypothetical!
And I want to make it clear that it is a hypothetical because of the continuing existence of those notorious veggie-libel statutes. There are more than a dozen, including an Ohio statute that provides:
Any producer of perishable agricultural or aquacultural food products that suffers damage as a result of another person’s disparagement of any such perishable agricultural or aquacultural food product or any association representing producers of perishable agricultural or aquacultural food products that have suffered damage as a result of another person’s disparagement of any such perishable agricultural or aquacultural food product may bring an action for damages and for any other relief a court having jurisdiction considers appropriate. If the plaintiff establishes that the disseminator knew or should have known that the information was false, damages may be awarded, including compensatory and punitive damages, reasonable attorney’s fees, and costs of the action.
I might be able to argue, of course, that "packaged salad is inherently unhealthy" is only my opinion. And perhaps I might even be able to prevail on a "falsity" standard. And of course I'd raise the First Amendment.
But I'd be worried that I might not prevail, and if I don't, I would be paying punitive damages and attorneys fees, not to mention my own litigation fees.
And if I did start talking about unhealthy packaged salads - - - which I am not! - - - it might be that I'd be contacted by an attorney representing salad packagers who would advise me about the pertinent statutes. Would that really happen? While there are some documented incidents from a decade ago, the present situation is less well known. A group called "Signal Interference" is collecting "any threats of litigation using food disparagement laws as their premise," more here.
Meanwhile, I don't have a thing to say about my dinner.
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