“Pink slime” strikes back
Is there something about the crisp autumn air that inspires litigation? It seems like the food news of the past few weeks has featured more than its share of stores about lawsuits–either launched or hitting important milestones. Here are two worth noting, both for their scope and potential impact, and a handful of other food fights that should delight you purely because they’re totally bizarre.
Who’re you calling slime?
We all remember ABC’s blockbuster exposé of “pink slime,” beef scraps processed to remove excess fat and extensively used in ground beef mixes. In 2012 Beef Products Inc. (BPI), the processor at the heart of ABC’s reporting, was financially battered in the aftermath, and decided to sue, alleging defamation and tortious interference with business relationships. The latest round: ABC News anchor Diane Sawyer, and correspondent Jim Avila, the last remaining defendants (in August, the South Dakota judge hearing the case signed off on the dismissal of five other defendants, including the ABC news division, another correspondent, a food scientist, the USDA microbiologist who coined the term “pink slime,” and a BPI quality assurance manager), have petitioned the judge to dismiss the case against them.
Don’t count on that dismissal. Defamation is always difficult to prove, but BPI is arguing that the network got the facts wrong in multiple, crucial, and (most important) provable ways—including implying that BPI soaked its product in ordinary ammonia to disinfect it, that the product consists mostly of connective tissue, and that USDA overruled its own scientists in allowing it to be used. BPI has got long lists of experts it says ABC refused to talk to or (in one case) hung up on. Judges tend to let juries make decisions on matters of fact, so it won’t be surprising if Sawyer and company are still on the hook.
And it’s a big hook. BPI is asking for $1.2 billion—$400 million in lost revenue, multiplied by three to punish the network. It’s a huge sum, roughly equal to what ABC made last year on a EBITDA basis (earnings before income tax, depreciation, and amortization, a basic calculation of profitability), according to a Forbes estimate.
It’s hard to know what to feel about the case. On the one hand, it’s frightening when large companies can use libel suits to attempt to silence legitimate criticism—and people have every right to be disgusted by “pink slime” if they want (even though I personally disagree with them). But on the other hand, it’s not BPI that comes across as the bully in this exchange—it’s ABC. When you just rile people up by spouting whatever pseudo facts pop into your head, that’s not journalism—it’s running for president. And surely that should be punishable by law.
The suit is scheduled to go to trial in June.
The sun never sets.
The definition of organic food is a bit of a work in progress. There seems to be a broad (though by no means complete) consensus that certain nonorganic substances and processes have to be allowed at least temporarily to protect farmers and the supply of good-though-not-perfect organic food. The National Organic Program came up with a reasonably elegant way to keep the heat on for change: It ruled that the National Organic Standards Board (NOSB) would create a list of allowable substances. Each substance on the list had to be reconsidered every five years, and unless two-thirds of the NOSB voted to keep it on the list, it was automatically dropped. The idea was that essential tools could be retained, but there had to be active support for retention; the default was to get rid of as many nonorganic substances as possible.
In September 2013, USDA announced a change to the procedure: Henceforward, the items on the list would be reviewed every five years. If two-thirds of the board voted to kick something off the list, it was off. Otherwise, it was retained. The new procedure was still called a sunset review, but it was nothing of the sort anymore. Retention was now the norm, and the removal of an item from the list required active support.
A roster of environmental and organic groups (including the Center for Food Safety, Beyond Pesticides, Food & Water Watch, and ten others) sued, arguing in part that USDA had failed to follow proper procedure—including soliciting public comments—in changing the rules. USDA argued that the groups had no standing to sue and asked for the suit to be thrown out. Late last month U.S. District Judge Judge Haywood Gilliam for the Northern District of California disagreed and said that the suit could go on. USDA, for its part, argues that the new procedure actually makes it easier for interested parties to have their opinions heard.
Next steps have yet to be announced.
The best of the rest.
Yogurt maker Noosa is suing Green Bay-based Schreiber Foods, alleging that Schreiber’s Dundee, Friendly Farms and Private Selection Aussie Style yogurts, which come in low, flat tubs like Noosa’s are “nearly identical or confusingly similar in appearance” to Noosa’s.
Ken Croucher of Country Butcher, a private-label jerky maker, is suing a former client, Perky Jerky. As Courthouse News describes the story, Croucher developed a caffeinated jerky for Perky (whose owner reportedly came up with the idea after spilling a Red Bull on conventional jerky). Croucher concocted a recipe based on guarana, a high-caffeine Brazilian berry. When Perky learned that USDA wouldn’t allow it to use guarana that way, it dropped that ingredient from the recipe, basically re-creating Croucher’s own original Country Butcher. Now Perky Jerky says it owns the recipe and Croucher can’t use it. Jerky, apparently, is the right word here.
In a truly bizarre-sounding case, Nestle is suing Crest Foods, which operates the Nestle Toll House Cookie Café by Chip chain under a license from Nestle. According to Law 360 (registration required), Crest is accused of creating unauthorized ads using Nestle branding. Worse, Crest COO Shawnon Bellah appeared on the television program Undercover Boss (in which senior executives are filmed doing low-level jobs at their own companies). Bellah used the Nestle name in identifying herself, and the program showed poor working conditions, inept operations, and (arguable) racism, all of which caused some consumers to turn against Nestle on social media.
And the estate of the late Dash Snow has sued McDonald’s, claiming that the burger chain appropriated images created by Snow, including his distinctive graffiti tag, to decorate some of its restaurants. Snow, reports the New York Post’s Page Six site (and who else would keep you informed about this kind of stuff?), was known for incorporating his own semen in his work, making him perhaps less than restaurant friendly.
See you in court.