Standing Up for Citizen Journalism

Back in July, many of you saw an Associated Press story which reported that “[s]everal food writers, including a New York Times reporter, have been subpoenaed by a meat producer as part of its $1.2 billion defamation lawsuit against ABC in regards to the network’s coverage of a beef product dubbed ‘pink slime’ by critics.”

Because of my successful Change.org petition in 2012, some of you asked whether I, too, had received a subpoena from Beef Products Inc. (BPI), the plaintiff in this lawsuit and the maker of lean, finely textured beef (“LFTB,” aka “pink slime.”)  I didn’t speak about it publicly at the time but, based on a motion filed by BPI in South Dakota state court, I knew a subpoena was likely on its way.  In mid-August, BPI’s process server showed up at my door.

Although I’m not a party to or otherwise involved in BPI’s lawsuit, BPI wants all of my private communications in 2012 with the parties they’ve sued, including employees of ABC News and the two former USDA microbiologists who first expressed concern about the meat filler in private emails, some of which were later made public by the New York Times.

I do have information responsive to this request, but I’m asserting the protection of the First Amendment and Texas’s “shield law” (a statute giving journalists a qualified privilege against disclosure of their material in cases like this) so that my confidential communications, source material and work product remain private

Here’s why I felt it was important to take this stand.

Whether the issue is GMO labelinganimal welfare practices, or the disclosure of questionable ingredients — from the yellow dye in mac-in-cheese to the LFTB hidden in ground beef — consumers clearly care about food transparency.  And precisely because we’re not affiliated with traditional media outlets, food policy bloggers like me have the freedom to focus exclusively on such issues, often devoting considerable time and effort to inform readers about, and advocate for, these causes.  But if bloggers and other “citizen journalists” are going to face lawyers and subpoenas whenever they gather information on potentially controversial topics, they may well think twice before they post.  And that sort of chilling effect ultimately harms us all.

I’ll keep you informed of any developments with respect to the subpoena.  And thanks to my attorney – better known around here as “Mr. TLT” – for taking time out of his own busy work schedule to represent me in this matter.

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Ex-BPI Employee Dismisses “Pink Slime” Lawsuit Against Me, ABC and Jamie Oliver

Back in December I told you that Bruce Smith, a former environmental health and safety officer at Beef Products Inc., filed a pro se lawsuit in Nebraska state court against me, ABC News, Jim Avila, Diane Sawyer and Jamie Oliver.   In his complaint, Mr. Smith claimed to have suffered the negligent infliction of emotional distress due to the loss of his job at BPI last May, a job loss which he alleged arose out the controversy over lean, finely textured beef (more popularly known as “pink slime”).

The case was subsequently removed by the defendants to federal court and about three weeks ago it was voluntarily dismissed by Mr. Smith.  To my knowledge, Mr. Smith has made no public comment regarding his dismissal of the case.

A second lawsuit arising out of the “pink slime” controversy continues, however.  That case, filed by BPI against ABC News, Jim Avila, Diane Sawyer, a former BPI employee and two former USDA microbiologists, seeks $1.2 billion in damages.  I’ll continue to provide updates on the BPI litigation as warranted.

I’d like to take this opportunity to express my gratitude to the many people who offered assistance and support while the Smith litigation was pending against me, with special thanks to attorney Kenneth White of the Popehat blog and to the Online Media Legal Network at Harvard University’s Berkman Center for Internet & Society.

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Minnesota Health Official: Man’s Death Likely Caused by Tainted LFTB

The New York Daily News reported over the weekend on a lawsuit which alleges that the death of a 62-year-old Minnesota man was caused by the consumption of lean, finely textured beef (aka “LFTB,” and more commonly known as “pink slime”) tainted with E coli.  The lawsuit was filed on January 8th by Marler Clark, one of the nation’s leading law firms for cases relating to food borne illnesses.

Throughout the “pink slime” controversy this past spring, Beef Products Inc., the company which manufactures LFTB, vigorously defended the safety of its product.  According to the company, its ammonium hydroxide processing method is sufficient to kill potentially deadly bacteria in the raw material it receives from beef processors, raw material which is more likely than other parts of the cow to have come into contact with feces during the butchering process.

However, according to a Pulitzer Prize-winning 2009 New York Times exposé, federal testing between 2005-2009 found that ground beef containing LFTB was four times more likely to contain salmonella than regular ground meat.  The facts of this case also took place during this time period, with the plaintiff’s consumption of the allegedly tainted beef taking place at the end of 2009, and his death occurring in early January, 2010.

The lawsuit alleges that tainted beef trim from JBS Swift & Company was sent to BPI for processing but the resulting LFTB still contained E coli when mixed by Tyson Foods, Inc. into ground beef  consumed by the plaintiff.  According to Marler Clark, this chain of distribution was determined through an investigation by the Minnesota Department of Health, the Center for Disease Control and Prevention, and USDA’s Food Safety Inspection Service; a chart prepared by Marler Clark illustrating the chain of distribution may be found here and is more fully described here.

The Minnesota Department of Health seems to feel there is a definitive link between BPI’s product and the plaintiff’s death, with a department representative quoted in the Daily News story as saying:

Is it likely that their product has ever made people sick, absolutely. . .  Is it likely that BPI’s product was a source of this illness, absolutely.

It’s important to note that in more recent years BPI has reportedly improved its pathogen testing protocols, a development which I and others have lauded.   However, based on my reading of the complaint and the Daily News story, it is unclear to me whether BPIs testing methods for the particular strain of E coli which allegedly killed the plaintiff in this case have changed since the new protocols were instituted.

The full New York Daily News story, written by David Knowles, may be found here.

 

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Ex-BPI Employee Sues Me, Jamie Oliver and ABC News Over LFTB Controversy

Yesterday I learned that Bruce Smith, a former environmental health and safety officer at Beef Products Inc., has filed a pro se lawsuit in Nebraska state court relating to last spring’s controversy over BPI’s lean, finely textured beef product.  I’m one of the named defendants, along with ABC News, Jim Avila, Diane Sawyer and Jamie Oliver.  I have not been served with the suit.

In his complaint, Mr. Smith claims to have suffered the negligent infliction of emotional distress due to the loss of his job at BPI last May.  Mr. Smith has also self-published a book entitled Pink Slime Ate My Job, the sale of which he appears to be promoting in connection with his lawsuit.

For the time being, I’ll have no further comment except to say that I’m confident the First Amendment protects the rights of all Americans, including bloggers like myself, against meritless attempts at censorship like this one.  I will vigorously defend my right, and the rights of all of us, to speak out on matters of public importance and to petition the federal government, as I did through Change.org, to change any policy with which we disagree.

My sincere thanks to all of you who’ve already expressed support and/or extended offers of assistance as I prepare to defend myself against this lawsuit.  I’ll keep you posted regarding further developments as warranted.

Before signing off, a reminder that the stringent comments policy I published last spring remains in effect.  Anyone who feels the need to include personal attacks, profanity or anti-semitic sentiments in their responses to this or any other post will not see their comment appear in this forum.  Moreover, all future comments from any sender violating this policy will go directly to my spam filter and I will not see them for moderation.

[Ed. Update: As of 12/19/12, this blog’s comments policy has been updated to indicate that I will summarily block any “commenters using aliases and multiple email addresses to appear to be more than one reader. I will use my reasonable judgment, based on IP addresses and other information, to determine if a commenter is engaging in this practice.”]

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Breaking: BPI Sues ABC News For $1.2 Billion Over “Pink Slime” Coverage

Beef Products Inc., maker of lean, finely textured beef (aka LFTB and commonly referred to as “pink slime”) has announced this morning that it is filing a state court defamation lawsuit against ABC News arising out of the network’s coverage of the product this past spring.   The suit seeks $1.2 billion dollars in actual and punitive damages.

At a press conference which is still underway as of this writing, BPI’s lead attorney alleges that ABC News made roughly two hundred false and misleading statements about the product and that the network “improperly interfered” with the relationships between BPI and its customers.

ABC’s response was short and to the point:

Statement from Jeffrey W. Schneider, Senior Vice President, ABC News:

“The lawsuit is without merit. We will contest it vigorously.”

Here’s the take of leading food safety lawyer Bill Marler:

I just do not get the liability. I just do not see it.

On damages – IMHO, most have been self-inflicted by BPI. I was in the BPI plant in 2009 and talked to them about the coming NYT story and they should be transparent.

Legal commentator Popehat looks forward to the lawsuit and its First Amendment implications.

I’ll share updates regarding the litigation as warranted.

Because news of this lawsuit is likely to stir the passions of LFTB supporters, before I sign off I’d like to remind everyone of my stringent comments policy.  Sadly, this reminder is necessary in light of the profane and sometimes overtly antisemitic comments which LFTB supporters have regularly attempted to post on this blog over the last several months.  Please be aware that all such comments will be automatically deleted at my discretion and the commenter’s IP address will be placed permanently in my spam folder.  Thank you.

[Ed. Update 9/13/12 11:15 CST:  Here is the actual complaint.  In addition to ABC News, other named defendants include the two USDA microbiologists and the former BPI employee who appeared on ABC’s reports regarding LFTB.]

 

 

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Nutella Settles Class Action Lawsuit Over Health Claims

Last February, I told you about a class action lawsuit filed against the makers of the chocolate hazelnut spread, Nutella.  The lead plaintiff in the class action, a mom from San Diego, claimed she was misled by the picture of milk, bread and fruit on the front of the jar, and was “shocked” to discover that the product in fact contains about 70% saturated fat and 55% processed sugar by weight.

I was pretty flip the first time I wrote about this case, noting out that the product’s nutritional profile was easily accessible from the label.  But then a few TLT readers took me to task, pointing out that Nutella’s website and advertising does create the impression that the spread is a nutritious product.  (And it really isn’t:  Michele Hays over at Quips, Travails and Braised Oxtails once did an experiment to visually deconstruct the ingredients.  Click here and scroll down to see what she found out.)

Well, TLT blogger: zero.  TLT readers: one.

Ferrero, the maker of Nutella, has just settled the lawsuit for, reportedly, three million dollars.  It will also make some changes its advertising, labeling and website.  If you feel you were harmed by the false, implied health claims, you can claim your share of the settlement ($4 a jar for up to five jars) here.

 

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Mom Heads to Court Over Nutella

Lawyers have filed a class action lawsuit against Ferrero, the makers of Nutella, on the grounds that the chocolate hazelnut spread  is falsely advertised as being “nutritious” and part of a “healthy breakfast.”

The lead plaintiff in the class action, a mom from San Diego, claims she was misled by the picture of milk, bread and fruit on the front of the jar, and was “shocked” to discover that the product in fact contains about 70% saturated fat and 55% processed sugar by weight.

Cause, you know, it’s not like they disclose the ingredients or nutritional information on the label or anything.

[Hat tip:  The Wall Street Journal]

New York Times Weighs in on Happy Meal Toys Lawsuit

I meant to get to this item earlier in the week — The New York Times editorial page recently weighed in on the lawsuit recently filed by the Center for Science in the Public Interest against McDonald’s over the use of toys in fast food meals.

After noting that 37% if children rank McDonald’s as their favorite fast food restaurant and that 10% of McDonald’s enormous ad budget is directed at the Happy Meal (including the use of the toys), the paper concludes that “[t]he Happy Meal is up for some well-deserved scrutiny,” and ends on this note:

Parents are responsible for their children’s diet. And they certainly could do a better job: almost 17 percent of American children are obese, three times as many as in the 1970s. But it would be easier for parents to do their job if they didn’t have to push back against the relentless tide of marketing aimed at their children.

I continue to feel ambivalence about the strategy of going after the Happy Meal toy as a means of combatting childhood obesity, a strategy that has been adopted via ordinance in San Francisco, as reported here a few weeks ago.   But clearly the CSPI feels it’s getting some traction with this approach, and the New York Times apparently agrees.

[hat tip:  Jen Maidenberg, aka, The Wellness Bitch]