Five food journalists—three with the online magazine Food Safety News, New York Times reporter Michael Moss, and attorney and food writer Michele Simon—have been subpoenaed by Beef Products, Inc., in its defamation lawsuit against ABC News over its reporting about the meat product referred to as “lean, finely textured beef” by industry but dubbed “pink slime” in the popular press.
BPI has asked for copies of any communications the five journalists had with ABC in 2012; its lawsuit seeks $1.2 billion in damages from ABC, saying that its coverage led consumers to believe the meat was unsafe to eat and ultimately caused the closure of three plants. ABC counters that each broadcast included statements that the USDA found the product safe to eat.
The reporters are challenging the subpoenas; Bruce Johnson, who represents the three Food Safety News writers (editor Dan Flynn, reporter James Andrews, and former reporter Gretchen Goetz), has called them “overreaching.”
Rebecca Cross, an attorney with the San Francisco-based law firm BraunHagey & Borden, speculates that the subpoenas could be a “fishing expedition for other defendants. It’s hard to say.” (Already named in the suit, besides ABC itself, are ABC news anchor Diane Sawyer, correspondents Jim Avila, and David Kerley; Gerald Zirnstein, the USDA microbiologist who dubbed the product “pink slime;” former USDA microbiologist Carl Custer; and Kit Foshee, a former BPI quality assurance manager who was interviewed by ABC.)
“The case reminds me of the lawsuit brought against Oprah a few years back for some comments she made about beef,” Cross says. “Some states, including South Dakota, where this lawsuit has been filed, and Texas, where the Oprah case was filed, have food disparagement laws that make it easier for food producers to sue their critics for libel and get damages.”
The key question in the suit, Cross says, is whether ABC’s statements implied that lean, finely textured beef was unsafe for public consumption. “From what I’ve seen, they never said it was unsafe. They talked about its appearance and low-grade quality, but do those statements imply that the product is making people sick? That’s the standard under the South Dakota food libel laws, and I don’t know that ABC’s statements go there. That’s what the court will have to look at.”