FOOD CIRCUS

David Merrefield

What could a Texas statute titled the "False Disparagement of Perishable Food Products Act of 1995" possibly contemplate?

Well, now we all know, thanks to a group of Texas cattlemen who brought suit under its provisions against popular daytime-television talk hostess Oprah Winfrey. The trial of Oprah, started last week in Amarillo, is all about a statement made on her show to the effect that certain cattle-feeding practices could facilitate the spread of "mad cow disease" in this nation. The disease is blamed in the death of 20 people in Britain who presumably contracted the malady by eating infected beef.

The facts about mad cow disease are far from pleasant: The disease turns the brain of infected cattle into sponge, and it does the same to afflicted humans. The disease is thought to have been propagated among Britain's cattle by the practice of feeding them ground-up cattle parts. An Oprah broadcast of April 1996 featured a guest who claimed that similar feeding practices existed in this country, so it wasn't impossible for the disease to spread here.

Greeted by these tidings, Oprah blurted a vow to quit eating burgers. That pronouncement led to the $12 million civil liability suit against Oprah under the disparagement doctrine because, it's claimed, Oprah's statement cost the state's industry such a sum by falsely promoting a decline in public confidence in beef.

A full baker's dozen of states have statutes that are collectively, and laughingly, called "veggie libel" laws. They spring from the Alar situation of several years ago during which overblown claims about the hazards of that chemical caused apple sales to tumble. That discloses the reasoning behind the say-no-evil statutes: Bad news about an agriculture product may take so long to dispel that a crop could be lost entirely.

No matter how much one might sympathize with sensitivities that gave rise to disparagement laws, it's not difficult to see the general difficulty that attends their enforcement. It's even easier to see that the decision to prosecute Oprah was a mistake of vast proportion.

As for the general difficulty: The disparagement laws fly in the face of every tradition of free speech known and guaranteed in this country. The fig leaf behind which such laws hide is that perishable products can't be salvaged in a timely manner from the economic blow of false statements. But the leaf just isn't big enough to cover this. Should stock brokers ask New York to forbid disparagement of stocks since their value is fleeting? Where might it end?

As for the specific difficulty of prosecuting Oprah: No worse target could have been selected. One reason is that her television talkfest, while considered by standards of the medium to be a bastion of reasonable discourse, isn't a fact-based news broadcast. It's opinion. Far worse, the suit has sparked a circus not only in Amarillo -- now the temporary venue for Oprah's show -- but worldwide. Countless news broadcasts and untold numbers of news articles have been generated afresh about the appalling mad cow tragedy.

At last week's Food Marketing Institute Midwinter Executive Conference, Britain's former prime minister, John Major, happened to be keynote speaker. During the question period he was asked what America might do to avoid the panic seen in Britain about mad cow disease. "There was blind panic in the United Kingdom and unbelievable press reporting. I doubt you'd face the same panic in the United States. I think we now know more about it," Major answered.

Let's hope his confidence in reasonable behavior soon goes into practice for both sides of this issue.