Editing Food libel laws (section)

== Criticism ==
Food libel laws have faced opposition from free speech defenders, who argue that they restrict speech about agricultural products to a degree which is unconstitutional.<ref name=":1" /><ref name=":6">{{Cite journal|url=https://archive.org/details/712406-forbidden-fruit|title=Forbidden Fruit|journal=Brooklyn Law Review|volume=67|issue=823|year=2001|first=Maggie |last=Caldwell}}</ref> Of particular concern is that some states' food libel laws seem to violate the "of or concerning" precedent which was established in the Supreme Court's 1964 decision on ''[[New York Times Co. v. Sullivan]]''.<ref name=":1" /> Sullivan, the commissioner of the Montgomery, Alabama, police department, filed suit against the ''New York Times'' after the paper ran an advertisement paid for by a civil rights group which criticized the Montgomery police department's treatment of civil rights protestors.<ref name=":5">{{Cite news|url=http://www.uscourts.gov/about-federal-courts/educational-resources/supreme-court-landmarks/new-york-times-v-sullivan-podcast|title=New York Times v. Sullivan Podcast|work=United States Courts|access-date=2018-11-19|language=en}}</ref> The Supreme Court's ruling in favor of the ''New York Times'' was supported in part by their argument that the advertisement was not explicitly "of or concerning" Sullivan, and so did not constitute libelous speech.<ref name=":1" /> Food libel legislation which defines disparagement of perishable agricultural products as any false statement that ''implies'' a product is unsafe, like the legislation present in Louisiana, Mississippi, Texas, and South Dakota, has been thought by some commentators to contradict this "of or concerning" element.<ref name=":1" /><ref name=":6" /> Such legislation might allow speech involved in marketing campaigns, like those that tout organic products as superior to their non-organic competitors, to be construed as ''implying'' the impurity or poor quality of certain products, and thereby potentially illegal.<ref name=":1" /> States which broadly define the parties who are eligible to sue under food libel laws have also come under criticism for disregarding the "of or concerning" element. Critics' argument is that defaming speech about an agricultural product is not explicitly "of or concerning" parties only tangentially related to that product, like its transporters or marketers, meaning that those parties should not be able to file suit if the product is disparaged.<ref name=":1" />

Food libel laws have also been criticized for their non-traditional placement of the burden of proof on the defendant rather than the plaintiff. In both defamation and trade disparagement legislation, ''plaintiffs'' are tasked with proving to the court that the speech in question is ''false''. In food libel legislation present in all but two of the states which have food libel laws on their books, ''defendants'' are tasked with proving to the courts that their statements about the agricultural product in question are ''true''. This is done by presenting scientific evidence to support the claims made about product safety and enlisting expert witnesses to substantiate those claims.<ref name=":6" /> Because these steps are so costly, there is concern that only very wealthy defendants would be able to muster a defense against a food disparagement claim.<ref name=":1" />

For reasons such as those described above, food libel laws and cases filed under them have been accused by online commentators and civil liberties activism groups, such as the Civil Liberties Defense Center, for propagating a [[chilling effect]].<ref name=":0" /><ref>{{Cite web|url=https://cldc.org/documents/aeta-veggie-libel/|title=Veggie Libel Laws: Attempts At Silencing Animal Rights Advocates |publisher=Civil Liberties Defense Center|date=9 January 2012|language=en-US|access-date=2018-11-19}}</ref> In a legal context, the "chilling effect" describes the phenomenon by which speech on a certain subject is indirectly curtailed by the passage of laws.<ref name=":1" /> Journalists have reported that simply the risk of legal retaliation for writing about food safety issues has stopped them from doing so. Smaller publishers, without the financial means to mount a defense should the producer of a food product oppose an author's commentary on it, have significantly revised or even canceled potentially liable books. Robert Hatherill's ''Eat to Beat Cancer'' and Britt Bailey's ''Against the Grain: Biotechnology and the Corporate Takeover of Your Food''  are notable examples of this practice.<ref>{{Cite web|url=http://advocacy.britannica.com/blog/advocacy/2009/11/burger-bashing-and-sirloin-slander-food-disparagement-laws-in-the-united-states/|title=Burger Bashing and Sirloin Slander |website=Advocacy for Animals|date=16 November 2009|language=en-US|access-date=2018-11-19}}</ref> The former was subject to extensive editing by its publisher—whole sections related to links between meat and cancer were deleted—and the latter was canceled entirely after its publisher received a letter from Monsanto warning of a possible suit.<ref name=":1" /> Ozzie Zehner self-censored his ''[[Green Illusions]]'', an analysis of the detrimental effects of certain environmental protection initiatives, because it included criticism of agribusiness.<ref>{{Cite web|url=https://www.huffingtonpost.com/tom-zeller-jr/ozzie-zehner-green-illusions_b_1710382.html|title=Ozzie Zehner's 'Green Illusions' Ruffles Feathers|last=Zeller|first=Tom Jr.|date=2012-07-27|website=Huffington Post|language=en-US|access-date=2018-12-10}}</ref> In the introduction to the book's chapter on consumption, Zehner wrote, "So-called food disparagement laws (also known as 'veggie libel laws') enable the food industry to sue journalists, writers, and other people who criticize their products, often placing the burden of proof on the defendant&nbsp;... Unlike Winfrey, I do not have the financial resources to defend myself in such a suit, and as a result you and other readers will be cheated out of the whole story", referencing the ''Texas Beef Group v. Oprah Winfrey'' case.<ref>{{Cite book|title=Green Illusions|last=Zehner|first=Ozzie|publisher=University of Nebraska Press|year=2012|location=Lincoln, Nebraska}}</ref>

Correspondingly, food libel cases have been alleged to be [[Strategic lawsuit against public participation|strategic lawsuits against public participation]] (SLAPPs).<ref name=":8" /> In general, a SLAPP is a [[Defamation|defamation or libel]] suit whose primary purpose is to silence the speaker and intimidate others from engaging in similar speech.<ref>{{Cite book|last1=Nader|first1=Ralph|author1-link=Ralph Nader|url=https://www.worldcat.org/oclc/33245805|title=No contest: corporate lawyers and the perversion of justice in America|date=1996|publisher=Random House|first2=Wesley J. |last2=Smith|isbn=0-679-42972-7|edition=1|location=New York|oclc=33245805}}</ref> In the specific context of food libel, the implication of the term is that agricultural companies sue under food libel laws in hopes of disincentivizing other potential critics lest they too be subjugated to a costly and inconvenient legal battle, rather than to necessarily win the case and recoup the costs of a damaged reputation.<ref name=":0" /> Complicating matters, twenty-nine states currently have statutes intended to prevent against the filing of SLAPP suits, including nine of the thirteen states with food libel laws.<ref>{{Cite web|url=http://www.medialaw.org/topics-page/anti-slapp?tmpl=component&print=1|title=Anti-SLAPP Statutes and Commentary|website=Media Law Resource Center|access-date=2018-12-10}}</ref><ref name=":8">{{Cite news|url=https://cldc.org/aeta-veggie-libel/|title=Veggie Libel Laws: Attempts At Silencing Animal Rights Advocates|last=Jonna|first=Jamil|date=2012-01-09|website=Civil Liberties Defense Center|language=en-US|access-date=2018-12-10}}</ref>