Bad-mouthing Bananas   

Eight states have passed them and two more are considering them. Lawmakers in other states think they might be a good idea. They are "agricultural disparagement" laws, measures designed to protect the reputation of food products from erroneous assertions about their safety.

Food producers love them. Editors, publishers, reporters, First Amendment watchers and consumer advocates don't.

The "Banana Bills," as they've been nicknamed, allow food producers to sue if they believe they have suffered losses as a result of damaging statements about their products. The laws cropped up first in Louisiana, Idaho, Georgia and Alabama and have spread to Florida, Colorado, South Dakota and Mississippi. Legislators in Minnesota and Washington state are debating them and one may be introduced in Maine this year.

Producers and growers argue that such laws are needed to prevent steep financial losses, such as those that occurred after CBS' "60 Minutes" ran a segment in February 1989 about the alleged cancer-causing properties of Alar, a chemical that had been sprayed on orchards to improve the appearance of apples. The report started an avalanche of negative news and resulted in a $130 million loss for Washington apple growers, according to the Washington State Farm Bureau. Apple juice was dumped by several school systems, school officials took apples off lunch trays and shoppers stopped buying the fruit. But as it turned out, consumers had overreacted – not all apples had been treated.

The new laws require that "reasonable and reliable scientific inquiry, facts or data" support any claims that a product is not safe for human consumption. "We're just saying that no disparaging remarks should be made about agricultural products that cannot be supported scientifically," says Robert F. Ray Jr. of the Georgia Farm Bureau. Otherwise, he says, "a farmer can be put out of business with one article."

Jack Reed, state editor of the St. Petersburg Times, says his paper "had fun" with the legislation, running an article about the dangers of bad-mouthing oranges.

Paul McMasters, executive director of the Freedom Forum First Amendment Center at Vanderbilt University, takes the measures more seriously. When journalists and editors first heard about these laws, he says, there were "chuckles and bemusement. Then there was perplexity. Then there was outright alarm." McMasters sees the laws as "legislative overkill."

"It's a use of the legislative process and the courts to quiet criticism," McMasters says.

Jane Kirtley of the Reporters Committee for Freedom of the Press thinks the laws apply an unduly rigorous standard to reporting. "It could turn journalists into people who have to try and sort out competing scientific data," she says.

Whose data are considered reasonable and reliable? In the Alar case the EPA decided, based on scientific studies, that the chemical posed unacceptable risks to public health. Alar's manufacturer, Uniroyal, did not apply to have the chemical reregistered and it is no longer used. But Peter Stemberg, spokesperson for Washington State's Farm Bureau, says even the EPA's science is "subject to second opinion."

Many in the media speculate that the laws won't stand up in court. Calling them "petty harassment of the press," David Bartlett, president of the Radio-Television News Directors Association, says he doubts any court would uphold their constitutionality. Lee Stinnett, executive director of the American Society of Newspaper Editors, agrees, calling the laws "ridiculous" and "obviously unconstitutional."

But the constitutionality of the laws has not been tested in the courts.

The Georgia branch of the American Civil Liberties Union has challenged the validity of the state's anti-disparagement law, but its suit was dismissed by a superior court. Now the ACLU is appealing to the Georgia Court of Appeals, but it will be difficult to make a case for the potential of the law to impede reporters from writing on food safety issues since no one has been sued.

That's part of the agri-business strategy, says David Bederman of Emory University, the ACLU's attorney in the case. He suspects that major agricultural corporations and trade groups are aware that filing suit would be the laws' death knell. But threatening suit is an equally effective tactic, especially against small newsletters or activist groups, such as Food and Water, a food safety consumer organization in Marsh Field, Vermont. Its executive director, Michael Colby, says the laws are intended to hinder groups like his from doing their work.

McMasters points out that the issue of food safety has been pushed aside in the legislative debate. "This is one more obstacle put in the way of the public getting full information about foods, and we can't afford that," he says. "Every bit of legislation put in the way of journalists who try to cover this story is detrimental to all Americans."

Lucy Riley, news director of WSFA-TV in Mongomery, Alabama, may soon feel the heat. When her station aired a story on the environmental impact of raising livestock for consumption and the illness caused by the E. coli bacteria, she heard that there might be legal action against her station. But she says such threats won't have any effect on what the station reports. "We're not going to be scared or intimidated," she says. "We do stories and let the chips fall where they may."