The maker of “lean, finely textured beef,” which critics call “pink slime,” is unlikely to prevail in a defamation lawsuit filed two weeks ago against ABC News, according to most experts quoted in the press.
Beef Products Inc. alleges that a string of on-air and online reports that the network produced from March to April amounted to “a month-long vicious, concerted disinformation campaign against BPI” that cost the company over $400 million and resulted in the layoff of more than 700 employees and the shuttering of three of its four factories. BPI says it will seek over $1 billion in damages, but the consensus seems to be that it won’t get a cent.
Lean finely textured beef (LFTB) is made from the fatty trimmings left over from better cuts of beef. BPI warms and spins them in a centrifuge to separate the meat from the fat, and because the trimmings come from parts of the cow that are particularly susceptible to contamination, the company treats the meat with ammonia to kill any pathogens. It then packs it into frozen bricks that are shipped to food suppliers. Restaurants, grocery stories, and cafeterias add the LFTB to pure ground beef to reduce its fat content (and the cost of the final product).
Industry has used ammonia for decades to improve the safety of variety of foods, and absent any form of contamination LFTB is safe, according to the Food and Drug Administration. In late 2009, however, The New York Times published a series of Pulitzer Prize-winning articles that questioned BPI’s processing method, citing dozens of instances in which E. coli and salmonella, as well as elevated pH levels, had been found in its meat.
But LFTB didn’t break into the American consciousness with force until ABC World News with Diane Sawyer reported in March that “pink slime once used only in dog food and cooking oil, now sprayed with ammonia to make it safe,” is now in 70 percent of the ground beef in US supermarkets. The segment, by Jim Avila, focuses on two former USDA scientists turned whisteblowers, including microbiologist Gerald Zirnstein, who coined the derisive term in 2002 memo. In the report, Zirnstein referred to the use of LFTB as “economic fraud,” saying, “it’s not fresh ground beef; it’s a cheap substitute that’s being added in.”
Fierce criticism from consumers ensued. Restaurants, supermarkets, and cafeterias began abandoning LFTB in droves. In an effort to stem the tide, the company launched a “beef is beef” campaign, and Agriculture Secretary Tom Vilsack joined a handful of cattle-state governors in an effort “to dispel LFTB’s negative image,” as Food Safety News, which produced a useful timeline of the affair, put it. Iowa’s Terry Branstad even called for a congressional inquiry into a media “smear campaign.” Nonetheless, LFTB sales plummeted 80 percent, according to BPI.
The company’s lawsuit against ABC News names Sawyer, Avila, and reporter David Kerley as defendants, in addition to the two USDA whistleblowers and a former BPI employee featured in their reports. It alleges that the network “knowingly and intentionally published nearly 200 false and disparaging statements,” ranging from use of the term “pink slime” to charges that LFTB is not beef, but rather a filler or substitute, to the comments about dog food and economic fraud.
BPI “will face a steep climb” in proving defamation, however, The Associated Press reported, citing a variety of experts. According to its article:
South Dakota is one of 13 states that have enacted a food-disparagement law, but there’s virtually no history of the laws being used in lawsuits, said Neil Hamilton, a Drake University professor and director of the Agricultural Law Center in Des Moines, Iowa.
The AP, like a few other outlets, cited the widely covered and unsuccessful suit that Texas ranchers launched against Oprah Winfrey in 1998 after she and a guest on her show made “disparaging remarks about beef” in relation to mad cow disease. In addition, Food Safety News pointed out an unsuccessful 1996 suit that an apple company filed against CBS’s 60 Minutes, after it reported that the company sprayed a dangerous chemical on its fruit. (The FSN article includes an editor’s note disclosing that, “Bill Marler, managing partner of Marler Clark LLP, underwriter of Food Safety News, has been asked to represent defendants Gerald Zirnstein and Carl Custer,” the former USDA scientists.)
Both cases helped establish a basic principle of defamation law—highlighted in articles by The Washington Post, The Wall Street Journal, Reuters, and others—which sets a high bar for success: If the plaintiff is a public figure (and companies like BPI usually are) they have to prove that a news outlet knowingly published false information or acted in reckless disregard to its falsity.