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EDITORIAL We Are What We Are Forced to Eat On February 24 jurors in Amarillo decided that Oprah Winfrey and Howard Lyman were not liable for damages in the suit brought against them by a group of Texas cattle feeders led by millionaire cattleman Paul Engler. The plaintiffs’ prospects had looked pretty dim ever since Judge Mary Lou Robinson ruled one week earlier, that they had failed to make a case under the Texas False allowed the suit to continue only under standard business disparagement statutes, thus setting the bar much higher for the plaintiffs. The plaintiffs will likely appeal the court’s ruling that the product disparagement law did not apply in this case. Some observers on the other side of the cattleguard had hoped that Carter appointee Robinson would strike down the Texas law, but she didn’t \(perhaps so as not to deprive herself of the opportunity to preside over an upcoming suit even weirder than Cattlemen. v. Oprah: under the false disparagement law, a group of Texas emu farmers is suing Honda over a television ad that portrayed emu farmers Little of the reporting on the trial concerned mad cow disease itself. This is unfortunate because, as Sheldon Rampton and John Stauber point out in their well-researched and very readable 1997 book, Mad Cow U.S.A. disease is poorly understood, and discussion of it is too often discouraged by industry and government spokesmen. Mad-cow disease, or bovine spongiform diseases \(transmissible spongiform enhuman Creutzfeldt-Jakob Disease. TSEs can be transmitted from one species to another, and also occur sporadically at a rate of about one in a million. Last year, Stauber and Rampton report, five unrelated patients in Western Kentucky were diagnosed with CJD, and it was found that all of them had eaten squirrel brains \(leading a group of verbally graceful researchers to urge “caution … in the ingestion of this arNo one knows for certain what the risks are of contracting CJD from food or other animal products. The theory about what happened in Britain is that cows were infected by eating meat-and-bone meal which contained the rendered remains of other BSE-infected cows, and people contracted CJD by eating BSE-infected beef; so the U.S. government banned the feeding of cud-chewing-animal-derived products to other cud-chewing animals in 1997. The ban does not apply to pigs or chickens, however, even though BSE has been experimentally transmitted to pigs. Under current regulations, it would even be legal to feed TSE-positive materials to pigs, chickens, or pets. Does this mean we should swear off eating hot dogs? Not exactly, write Stauber and Rampton, for based on current, limited scientific understanding of the disease, TSEs could “pop up in medicines, in organ transplants, in gelatin \(which is used in everything from dessert mixes to den fertilizer made from rendered bone meal…. The truth is that the risks come from so many directions and are so unpredictable that consumers can’t and shouldn’t be expected to cope with those risks by selectively boycotting products suspected of harboring an unseen infection. There are too many bullets to dodge, and the shots may be blanks anyway. What we need is good data, and in the meantime we need serious implementation of measures to prevent the disease from spreading not just surveillance that will only alert us to tragedy after it has already arrived.” Standing between the public and “good data” and more generally blocking the publication of information about food safety are product disparagement laws. Wealthy celebrities like Oprah can fight and win lawsuits, but the threat of a lawsuit silences critics with shallower pockets a pleasing outcome for the laws’ authors, who would prefer that questions of food safety be resolved without any public discussion. Stauber and Rampton quote farmer and Illinois law professor Eric Freyfogle: “Do we know whether it is fully safe for humans to drink milk for 40 years from a cow given [bovine growth hormone]…? The answer, plainly, is that we do not, no one knows, be cause no one has ever done it…. The un derlying issue is this: Should we assume that a product is safe until we have proven otherwise, or should we assume it is unsafe until its safety has been fully demon / stated? …The point here is 5 5 that debates about safety deal only in part with is* sues of fact. There are important questions of * a value here, and they need to be publicly 1LA debated, without the danger of being thrown in jail or having one’s savings drained through litigation.” K.O. Don Cooper, from The Hereford Brand 4 THE TEXAS OBSERVER MARCH 13, 1998