Here’s what to look for in the “pink slime” trial

Jury selection for the now-infamous “pink slime” trial started in South Dakota on Wednesday, and court proceedings are expected to last through late July. Forget about this lawsuit? Quick recap: Back in 2012, ABC aired a blockbuster exposé on the production and proliferation of lean finely textured beef, more commonly known as “pink slime.” Beef Products Inc. (BPI), the company featured prominently in ABC’s coverage, sued the network to the tune of more than $1 billion. It claimed the news reports hurt its sales, forcing it to close plants and lay off hundreds of workers. The defendants, which include ABC and correspondent Jim Avila, stand by their reporting. So far, they’ve been unsuccessful in petitions to have the lawsuit dismissed. Now, the case is headed to trial. We wrote more about this back in October—refresh yourself here.

Here’s what to watch for during the proceedings:

Whether or not the broadcast called the product’s safety into question will be up to the jury.

On what grounds? BPI is suing for “everything under the sun,” Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota, told NPR’s Robert Siegel this week. That includes product disparagement, defamation, and interference with business claims.

But there’s one claim in particular that, if proven in the eyes of the jury, could triple the amount of money ABC would have to pay BPI. South Dakota is one of thirteen states that have a food-specific libel law (in this case, it’s called the Agricultural Food Products Disparagement Act). South Dakota’s law allows the plaintiff to sue for “treble,” or triple, damages, the Associated Press reports.

This isn’t the first time a famous television personality has been sued for taking beef to task. Oprah Winfrey and one of her guests made comments in 1996 about mad cow disease, and Texas cattle ranchers said the segment caused prices to drop to ten-year lows the next day. That incident led to a food defamation suit as well, though the jury ruled in Oprah’s favor.

But as Kirtley points out, the agricultural disparagement angle is more difficult to prove than “garden-variety libel.” That’s because South Dakota’s disparagement laws require BPI to show that ABC actually called “pink slime” unsafe, not just gross.

As Pat Clinton pointed out in October, BPI is arguing that ABC implied the product was soaked in ammonia and that USDA overruled its own scientists in allowing “pink slime” to be used in ground beef. Whether or not the broadcast called the product’s safety into question will be up to the jury.

The fake news angle. Attitudes toward the mainstream media have changed a lot since Oprah went on trial in the 90s, and Kirtley thinks the current political climate may have some bearing on the jury’s decision. BPI calls ABC’s coverage a disinformation campaign, she says, which may resonate with jurors as media outlets are repeatedly accused of peddling “fake news.”

So: necessary exposé or corporate smear campaign? Either way, the case won’t set a precedent until the losing side has its chance to appeal the decision. And though she thinks the jury may rule in favor of BPI, Kirtley told the Associated Press that news organizations tend to fare a little better on appeal than in trials, adding that media defendants prevail in 56 percent of tried cases when all is said and done.

About the term “pink slime.” Bear in mind that ABC did not coin the term “pink slime,” though the words themselves certainly contribute to the product’s “ick” factor. USDA microbiologist Gerald Zirnstein used the term in an agency email he intended to keep private. Though Zirnstein was originally a defendant in the lawsuit, he has since been dismissed (as has anchor Diane Sawyer, though we named her as a defendant in our October coverage).

One last point: ABC wasn’t the first network to call attention to “pink slime,” though it was, BPI maintains, the straw that broke the camel’s back. The New York Times questioned its safety in 2009 and Jamie Oliver devoted a segment to it in 2011.

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H. Claire Brown is a senior staff writer for The Counter. Her work has also appeared in The Atlantic, The Guardian, and The Intercept and has won awards from the Society for Advancing Business Editing and Writing, the New York Press Club, the Newswomen's Club of New York, and others. A North Carolina native, she now lives in Brooklyn.