A major agriculture lawsuit is finally underway in South Dakota. The defendant is ABC Television; the plaintiff is Beef Products, Inc. ("BPI"), a South Dakota meatpacker. The lawsuit centers on ABC's repeated use of the phrase pink slime to describe BPI's lean finely textured beef ("LFTB") in March 2012. Five years ago, BPI sued ABC in a $1.9 billion defamation suit under South Dakota law.
BPI alleges ABC's repeated use of the term pink slime caused LFTB orders to shrink by almost 80%, from 5 million pounds to about 1 million pounds per week. The beef processor closed three of its four plants and was forced to terminate at least 650 workers. ABC contends major food chains like McDonald’s, Burger King and Taco Bell, stopped using BPI products in early 2012, several months before the first ABC broadcast aired.
BPI's initial challenge is to make it through the liability phase of the trial to the damages phase. BPI brought numerous common law and statutory claims, including product disparagement, libel, and interference with a contract. Defamation by libel is defined by South Dakota Codified Law §20-11-3:
Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.
Quick note: despite the rise of "fake news" over the past year, you can still be held liable for making false statements about another person or company. If BPI convinces a jury of its case, damages could be tripled under the South Dakota Food Product Disparagement Act. This high-dollar trial is expected to last up to eight weeks.
Beyond the eye-popping dollar amount at stake, another issue is the social stigma now attached to the beef. LFTB is made from the trimmings of the cow. It typically is added to ground beef to reduce its overall fat content. It is an affordable form of lean protein, and demonizing it can hurt the people who rely on it. Many school lunch programs relied on LFTB to incorporate protein into lunches without breaking the bank. The FDA confirmed LFTB was safe back in March of 2012, not long after ABC began running its programs about pink slime.
LFTB does not pose a health risk -- but the pejorative visual term "pink slime" made some consumers queasy. Now a South Dakota jury will decide whether ABC's use of "pink slime" was defamatory. If it was, it is likely to lead to a large damages verdict that will no doubt make ABC's board queasy.
*** After my original publication of this article, an ABC spokesperson reached out to me with ABC's latest public statement: "We believe in the principle that people deserve to know what’s in the food they eat and are confident that when all the facts are presented in court, ABC’s reporting will be fully vindicated." ***