Revenge of the Pink Slime II: South Dakota Supreme Court Allows Trial Of ABC For Beef Coverage

220px-Ground_beef_USDAo-pink-slime-abc-news-lawsuit-facebookWe have previously covered the “pink slime” controversy and claims by the industry that the term is defamatory toward a beef product that it prefers to call “lean finely textured beef.” Now, the Supreme Court of South Dakota has cleared the way for a trial of ABC and and several correspondents for the network, including Diane Sawyer, over its coverage of the controversy in a case that threatens the right of the free press as well as free speech.

Beef Products Inc. brought the defamation action in South Dakota and notably included Gerald Zirnstein, a U.S. Department of Agriculture microbiologist, as a defendant. It was Zirnstein who reportedly coined the catchy phrase “pink slime” for the beef product. The company is seeking $400 million in claimed actual and consequential damages, treble damages, punitive damages and attorney’s fees and costs.

Judge Cheryle Gering of the Union County Circuit Court previously ruled that Beef Products Inc may pursue most of its claims against ABC, a unit of Walt Disney Co. Here is her opinion. The Supreme Court refused to review the decision on an interlocutory appeal.

The product widely called “pink slime” is what the industry calls lean finely textured beef (LFTB) and boneless lean beef trimmings (BLBT). It is made by heating the fatty trimmings that remain after cattle carcasses are cut into roasts or steaks. The process involves a centrifuge that separates the bits of lean mean the scraps contain.

The company is alleging that the defendants convinced many that it was producing “some kind of repulsive, horrible, vile substance that got put into ground beef and hidden from consumers.” It is alleging that the coverage led to massive layoffs and the closure of three of four of the company’s plants.

The lawsuit includes claims of common-law product disparagement, violation of the South Dakota Agricultural Food Products Disparagement Act and tortious interference with prospective business relationships. The lawsuit bears a strong resemblance to some other lawsuits involving disastrous coverage. The two leading examples both ended in losses for the Plaintiffs, though these lawsuits are often motivated by a desire to educate the public through litigation.

The first such case that comes to mind is Auvil v. CBS, 67 F.3d 816 (9th Cir. 1996). Sixty Minutes was showed after airing “A is for Apple,” a story criticizing the growers for their use of Alar, a chemical sprayed on apples. The shows devastated apple sales, but both the district court and the appellate court ruled for CBS. In a statement with obvious bearing on the current case, the Ninth Circuit stressed:

We also note that, if we were to accept the growers’ argument, plaintiffs bringing suit based on disparaging speech would escape summary judgment merely by arguing, as the growers have, that a jury should be allowed to determine both the overall message of a broadcast and whether that overall message is false. Because a broadcast could be interpreted in numerous, nuanced ways, a great deal of uncertainty would arise as to the message conveyed by the broadcast. Such uncertainty would make it difficult for broadcasters to predict whether their work would subject them to tort liability. Furthermore, such uncertainty raises the spectre of a chilling effect on speech.

The second case that comes to mind is Texas Beef Group v. Winfrey, 201 F.3d 680 (5th Cir. 2000). The case is based on a show involving Oprah Winfrey called the “Dangerous Food” show, which dealt with “Mad Cow Disease.” Winfrey discussed the new-variant CJD in Britain. After hearing from various experts on the dangers of Mad Cow Disease, Oprah stated that she would not eat ground beef. Showing the power of Oprah, the court reported that “following the April 16, 1996, broadcast of the “Dangerous Food” program, the fed cattle market in the Texas Panhandle dropped drastically. In the week before the show aired, finished cattle sold for approximately $61.90 per hundred weight. After the show, the price of finished cattle dropped as low as the mid-50′s; the volume of sales also went down. The cattlemen assert that the depression continued for approximately eleven weeks.” The industry sued but lost before a Texas jury.

The media used the slang term for the product in the context of covering the story. Moreover, calling a product “slime” is in my view clearly opinion and the inclusion of the scientist in my view is vexatious and unfounded. Likewise, the targeting of ABC raises serious questions of freedom of the press and the threat posed by tort liability vis-a-vis the first amendment. I would bet against the viability of the lawsuit in the long run absent a showing of clearly false statements as opposed to opinion.

While I can understand the view of the state Supreme Court that it must defer to factual findings of the trial court and generally interlocutory appeals are disfavored, the trial court decision is highly dismissive of the core free press and free speech implications of the ruling. While well-researched and detailed, the court brushes over the opinion aspects of some of these statements and dismissed statements to the effect that there is no evidence that the product is unhealthy. The case presents precisely the chilling effect that the Supreme Court has repeatedly sought to avoid for the media in cases like New York Times v. Sullivan. I am particularly troubled by the scorched earth litigation approach of Beef Products in targeting Zirstein for a mere nickname. A catchy nickname to be sure as well as a negative one. However, it has taken off precisely because it seems to capture how this product looks to many people.

Source: USA Today

35 thoughts on “Revenge of the Pink Slime II: South Dakota Supreme Court Allows Trial Of ABC For Beef Coverage

  1. Not only is it pink slime. It’s pink slime with a little ammonia thrown in for good measure.

  2. We don’t have much free press left. The media is limited by the corporate limits and when even those limits don’t stop the disclosure of corporate bad conduct the courts seem happy to oblige the “aggrieved” corporation.

  3. I am with the beef people on this one. You kill their product, you pay for it. If they had called it what the industry called it, nothing would have happened. But no of us wants to eat ‘slime’ do we, Prof?

  4. “Calling a product “slime” is in my view clearly opinion”. Would it be opinion if a reporter, while on the air, called a doctor a whore; or a lawyer a scumbag; or a professor a child rapist? So, you hold that any word uttered by a reporter that is not based on fact is, in fact, an opinion and protected?

  5. We can hope that the court does what is right to protect free speech. We can also take action ourselves, boycotting companies that try to suppress honest debate.

  6. correct me if I am wrong (I know you will) but was not “pink slime” in general usage when this story was new? If so, can it be traced to ABC as the origin?

  7. LLewis: I don’t consider calling, on national TV, a company’s product “slime” as honest debate. Would it be “honest debate” if I called you stupid? (No offense intended; making a point, only.)

  8. Andy: Good question. Can the media be held accountable for broadcasting slurs, if the slur had been uttered by someone else, somewhere else? How about their use of “alleged” when talking about a suspect being arrested? If the cop says “Timmy raped her”, can the media then report “Timmy raped her” or “police caught the rapist, named Timmy, shown here in front of his house on 123 Main Street….”

  9. This litigation, as JT says, is likely to backfire on them.

    It will become “THE PINK SLIME CASES” in the news and law journals.

  10. Steve H. Calling someone a “child rapist” is an assertion that a particular fact is true–that the person raped a child. Calling someone a “scumbag” does not, whether or not the opinion is valid. Calling something that is obviously pink and slimy “pink slime” is true as to the specific facts it asserts. To the extent that people believe the name implies a view that the substance is gross, it does not assert a fact, but an opinion.

  11. I grew up in the Midwest not far from a commercial hog meat packing plant. I once heard a guy who worked there joke that the only part of the hog there’s no market for is the “oink”. I stopped eating hot dogs shortly thereafter.

  12. As a generic term, I have come to regard “slime” as a liquid substance that is thick, slippery, and at least somewhat thixotropic.

    From what I understand, lean finely textured beef is ordinarily a thick liquid substance that is slippery and somewhat thixotropic.

    From what i understand, lean finely textured beef is ordinarily pink or pinkish in colour.

    From what I understand, lean finely textured beef is ordinarily a pink liquid substance that is thick, slippery, and somewhat thixotropic.

    Since when is a scientifically accurate description of something properly actionable?

    Interpretation is in the mind of the interpreter. As Gerald Zirnstein evidently described lean finely textured beef with scientific accuracy, as a pink liquid substance that is thick, slippery, and somewhat thixotropic, surely Beef Products, Inc., needs to sue all the people who are so scientifically Illiterate as to be unable to interpret a scientific descriptor of a food substance with enough scientific acumen as to be able to avoid deceiving themselves?

    Ever read the book by the late Loyola Law School Professor Emeritus, Robert Benson, The Interpretation Game: How Judges and Lawyers Make the Law, Carolina Academic Press, 2007?

    Interpretation of a received message is a property, and a function. and is solely in the province, of the recipient of a message; and is not a property, or function, or in the province of, the sender of the message.

    Ever read any edition of S. I. Hayakawa, Language in Thought and Action?

  13. This case exemplifies exactly why the press is afraid to go after dangerous food purveyed by big corporations and special interests. For example, GMO food has been banned from the kitchens of the White House, yet it’s perfectly okay for children and families to consume food that is as much as a time bomb that eventually destroys the health of every consumer. Because we are a nation of media sheep, we only fear those dangers that the media broadcasts. Everyone knows the dangers of guns, for example, but no one knows the dangers of GMO food. The degree of our ignorance is indicated by full parking lots of millions of restaurants, every one of which serves GMO food in one form or another. Even Bill Clinton needed bypass surgery. Now a devout vegan, he regrets being so ignorant of the food dangers in our nation, something he won’t say out loud. If there really was free speech in this country, bypass surgeries would go the way of buggy whips. Meantime, your next bite of food is just another straw that will eventually ruin your health (or has already), if not kill you prematurely. As much as I dislike Diane Sawyer, I’m hoping she prevails for the benefit of every consumer who is entitled to the best health possible.

  14. I’m with those favoring the beef industry and I am no fan of the beef industry in general. However, there is plenty to report on with facts without using disparaging names. In general, the beef industry uses massive amounts of antibiotics, growth hormones, and corn. Cows in the wild eat very little corn or any grain for that matter (and I am pretty sure they naturally shy away from antibiotics and growth hormones). Their bodies are meant to convert mostly grasses into protein, feeding them massive amounts of corn in the last months of their lives causes numerous problems that then must be fixed via antibiotics.

    So call it what it is, describe how it’s made, but when you purposely use words to convey icky, and if such reporting hurts sales, pay the piper. As many have posted I may have the opinion that someone is a monkey’s whore, if I tweet that and it goes viral, and if said person is damaged by loss of income, I am pretty sure I may end up in court.

  15. Paul, If someone posts a restaurant review saying the food is “icky” do you believe they should be subject to suit if sales are hurt? What if someone call the restaurant’s guacamole “green slime” (incidentally a phrase I think applies to all guacamole). I don’t. I want that information–then I can decide what to do with it based on the source. That is the nature of the marketplace of ideas. Requiring the press to present information in some kind of absolutely neutral way is to impose an impossible obstacle because words mean different things to different people. If you refer to a food item as being similar to foie gras, some would consider it a compliment and others to be disparaging. I’m curious as to how disparaging words must be before you would consider it actionable. Would “pink goop” be actionable, or “pink wet beef stuff processed with ammonia.”

  16. How about not making products the public finds revolting? That might go a long way in preventing these news reports the industry finds objectionable.

  17. It’s been called pink slime for a number of years. Wikipedia: The term “pink slime”, a reference to the product’s “distinctive look,”[41] was coined in 2002 by Dr. Zirnstein in an internal e-mail.[25][26][42] Expressing concern that ammonia should be mentioned on the labels of packaged ground beef to which the treated trimmings are added,

    “In the United States, the additive itself cannot legally be sold directly to consumers. However, it can constitute up to 15 percent of ground beef without additional labeling,[22] and it can also be added to other meat products such as beef-based processed meats.[22] Prior to the invention of the disinfection process, beef scraps could not be processed to reduce or remove the fat, bone fragments or other non-beef components and could be sold for other uses only, such as pet food or as an ingredient for cooking oil.[14]”

    What more disturbing than this frivolous pink slime case is the fact that pink slime is in many products and it doesn’t have to be mentioned! That should be the outrage. But what besides large corporations have the wherewithal to take these giant slaughters and growers to court?

    Here’s a timeline of pink slime:

    What if it was called pink waste meat products? Pink meat things? Pink filler? If it wasn’t for the outrage, McDonalds, Burger King and Taco Bell would still be using that waste in their burgers.

  18. Richard – there is a difference between doing a local review, even on local TV and doing a national expose with national exposure.

  19. Taco Bell Warns Employees Against Directly Exposing Skin To Food
    NEWS • Food • Fast Food • News • Business • ISSUE 50•20 • May 23, 2014

    Taco Bell’s new employee safety manual explains how to use a Class D fire extinguisher should a regular menu item and a breakfast menu item ever come in contact.

    Google Plus317

    IRVINE, CA—In a new handbook distributed Friday to employees at all 6,500 of its locations worldwide, fast food chain Taco Bell has issued an updated set of safety protocols that warns workers against directly exposing their skin to any of its food products.

    The company’s revised food-handling directives, which apply to every item on the restaurant’s Tex-Mex–inspired menu, require employees to notify their shift manager immediately if Taco Bell ingredients make even brief surface contact with any part of their body, with the exception of instances when items come in contact with the eyes, in which case all workers are instructed to use the nearest emergency eye wash fountain “without delay.”

    “We want our team members to protect themselves from the dangerous complications that result when the skin of one’s hands or face is directly exposed to either a regular menu item or a featured promotional specialty during the food preparation process,” read an excerpt from the 436-page manual, noting that an employee’s first line of defense is to wear chemically impermeable butyl gloves when dispensing the restaurant’s meats, salsa, or three-cheese blends. “The easiest way to ensure safety on the job is to wear an approved Taco Bell long-sleeve work coat and disposable latex shoe covers at all times while in the restaurant’s kitchen, and above all, be mindful when preparing a menu item so that no food or condiment ever touches exposed flesh.”

    “However, in the event of epidermal contact with any of our meat fillings, you must immerse the affected area under running water at once and then apply the neutralizing chemical agent found in the wall-mounted dispensers located every five feet above the food preparation counters,” the manual continues.

    The new instructional materials detail numerous preventative measures employees should follow to avoid compromising their health, such as limiting their kitchen shifts to three hours in order to prevent prolonged exposure to dollar-menu items or a maximum of 25 minutes if the kitchen’s fume hoods are not functioning. In addition, the handbook urges workers to take their breaks outdoors in fresh air at least 100 feet away from any Doritos Locos Taco.

    The guidelines further direct kitchen workers to seal any broken taco shells in specially marked plastic bags and discard the bags in one of the red puncture-resistant waste disposal containers located throughout the kitchen. Employees are also instructed to wear their company-issued safety goggles before entering the burrito assembly area, know the location of the restaurant’s emergency potassium iodide tablets, and submit themselves to periodic testing with a qualified toxicologist.

    It is also recommended that any clothing soiled with Zesty Pepper Jack Sauce be disposed of as soon as possible in the industrial furnaces provided at each franchise location for this purpose.

    “Under no circumstances should employees remove their lead aprons when in the vicinity of any of our nacho-based menu options,” the manual states. “Furthermore, Taco Bell crew members—especially those who are pregnant or might become pregnant—must always wear aluminized protective coveralls and a military-grade respirator mask in the presence of our refried beans.”

    “It is absolutely imperative that the Cheesy Gordita Crunch be assembled behind a pane of protective glass until the moment it is served to customers,” the manual adds. “There can be NO EXCEPTIONS to this rule.”

    The instructional booklet goes on to state that if a worker accidentally touches any one of the seven layers in a seven-layer burrito, he or she must quickly take a disinfecting chemical shower, “even if contact occurs during the lunch rush.”

    A foreword to the manual written by company CEO Greg Creed assures Taco Bell workers that, as long as they follow the officially delineated standard protocol for food preparation and all internationally accepted guidelines from the National Association of Corrosion Control Engineers, they need not worry about contamination on the job. Creed admitted, however, that accidents have occurred at chain locations from time to time.

    “Each Taco Bell location is equipped with sophisticated sensors able to identify and seal off any zone in which airborne concentrations of Border Sauce reach unsafe levels above 12 parts per million,” said Creed, explaining that the system would also react to any guacamole or sour cream spills. “Should the alarm be triggered, decontamination locks will isolate the clean chamber along with all those inside until an appointed Yum! Brands hazmat team arrives from corporate headquarters and is able to ascertain if the scene is salvageable.”

    “Of course, our company strives to avoid these sorts of quarantine scenarios whenever possible,” Creed added.

    Pressed for comment, Taco Bell representatives noted that during the month of June, customers could upgrade any of their purchases with a delicious, thirst-quenching Mountain Dew Typhoon Freeze for only $1.99.

  20. Darren, if 99 percent of the population does not find hot dogs & chicken mcnuggets revolting, should we be surprised what the meat industry will slide down our necks? Scraps that butchers used to give away free, are now recycled and sold for $4 a pound. It is only amazing what people will eat, after they see it advertised on TV.

  21. This is going to backfire on the beef producers. All they are doing is calling more attention to the practice of including some questionable leftovers in ground beef. That makes it far more likely that more people will stop buying their product. Plus they are going to lose the suit as well, and end up making fools of themselves. Good luck!

  22. The enclosed link shows what we have to look forward to, if we continue our insane addiction to restaurant and processed food. During the past 20 years, dialysis centers have popped up on virtually every corner. A harbinger of what we have to look forward to as a consequence of GMO and deadly corporate agriculture, which only cares about bottom lines at the expense of public health and welfare. Human birth defects are so common now, parents just take them in stride already, never even so much as pausing to connect the dots, even though the literature is already out there. In a recent study out of Canada, glyphosate was found in 95 (?) percent of all mothers milk. And all we do is continually scratch our heads about birth defects.

    Dramatic Increase in Kidney Disease in the US and Abroad Linked To Roundup (Glyphosate) ‘Weedkiller’

  23. pdx – I think the beef producers think they have nothing to lose at this point and everything to gain. Even if they lose the case, they might gain their reputation back.

  24. Lean finely textured beef (LFTB) is literally pink and slimy, so I don’t see how that description is libelous.

    It is processed beef in which the last scraps of beef are separated from fatty trimmings, which would otherwise go to waste. Boneless Lean Beef Trimmings (BLBT) are puffed with ammonium hydroxide as an antimicrobial, the same as are used in puddings and some baked goods. LFTB uses citric oxide as an antimicrobial. Since the meat is heated to 100 degrees during processing, it is important to use an antimicrobial agent. Since it is mixed in with ground beef, its texture blends in and goes unnoticed.

    On the one hand, its advantage is that it enables producers to use as much of the carcass as possible. Not letting anything go to waste has its ethical and financial advantages.

    On the other hand, consumers have the right to vote with their dollars. And they don’t want it injected into their ground beef, regardless of its advantages for increasing protein and lowering fat content. It is not separately labeled because it is still “beef.” But when people buy ground beef, they assume it is not processed. It is the processing aspect that is hidden from consumers by food labeling requirements. It gives ground beef an aspect of SPAM.

  25. Paul:

    That Taco Bell article was featured in the Onion, a satire likely wrote after the author ate there and spent the next hour in a restroom. Hahaha! I love The Onion.

  26. […] Turley sees the issue BPI has with the piece, he doesn’t feel the lawsuit is viable, since there were no false statements in the news […]

  27. Schulte:

    EAT SLIME, not me!!! Solving the slime problem is simple though. Eat chicken instead. For eating at home, Just buy your own chuck steak, grind it yourself , it in patties and freeze it. Simple, no slime and great burgers. The reason to avoid the onion, is that onion is generally the first thing to start spoiling when not refrigerated. When eating out choose dishes that have no ground beef in them. We can comment all we want but in the interim we are still stuck with……… “SLIME

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