BPI’s beef with ABC News

‘Pink slime’ defamation suit a long shot, media report

The maker of “lean, finely textured beef,” which critics call “pink slime,” is unlikely to prevail in a defamation lawsuit filed two weeks ago against ABC News, according to most experts quoted in the press.

Beef Products Inc. alleges that a string of on-air and online reports that the network produced from March to April amounted to “a month-long vicious, concerted disinformation campaign against BPI” that cost the company over $400 million and resulted in the layoff of more than 700 employees and the shuttering of three of its four factories. BPI says it will seek over $1 billion in damages, but the consensus seems to be that it won’t get a cent.

Lean finely textured beef (LFTB) is made from the fatty trimmings left over from better cuts of beef. BPI warms and spins them in a centrifuge to separate the meat from the fat, and because the trimmings come from parts of the cow that are particularly susceptible to contamination, the company treats the meat with ammonia to kill any pathogens. It then packs it into frozen bricks that are shipped to food suppliers. Restaurants, grocery stories, and cafeterias add the LFTB to pure ground beef to reduce its fat content (and the cost of the final product).

Industry has used ammonia for decades to improve the safety of variety of foods, and absent any form of contamination LFTB is safe, according to the Food and Drug Administration. In late 2009, however, The New York Times published a series of Pulitzer Prize-winning articles that questioned BPI’s processing method, citing dozens of instances in which E. coli and salmonella, as well as elevated pH levels, had been found in its meat.

But LFTB didn’t break into the American consciousness with force until ABC World News with Diane Sawyer reported in March that “pink slime… once used only in dog food and cooking oil, now sprayed with ammonia to make it safe,” is now in 70 percent of the ground beef in US supermarkets. The segment, by Jim Avila, focuses on two former USDA scientists turned whisteblowers, including microbiologist Gerald Zirnstein, who coined the derisive term in 2002 memo. In the report, Zirnstein referred to the use of LFTB as “economic fraud,” saying, “it’s not fresh ground beef; it’s a cheap substitute that’s being added in.”

Fierce criticism from consumers ensued. Restaurants, supermarkets, and cafeterias began abandoning LFTB in droves. In an effort to stem the tide, the company launched a “beef is beef” campaign, and Agriculture Secretary Tom Vilsack joined a handful of cattle-state governors in an effort “to dispel LFTB’s negative image,” as Food Safety News, which produced a useful timeline of the affair, put it. Iowa’s Terry Branstad even called for a congressional inquiry into a media “smear campaign.” Nonetheless, LFTB sales plummeted 80 percent, according to BPI.

The company’s lawsuit against ABC News names Sawyer, Avila, and reporter David Kerley as defendants, in addition to the two USDA whistleblowers and a former BPI employee featured in their reports. It alleges that the network “knowingly and intentionally published nearly 200 false and disparaging statements,” ranging from use of the term “pink slime” to charges that LFTB is not beef, but rather a filler or substitute, to the comments about dog food and economic fraud.

BPI “will face a steep climb” in proving defamation, however, The Associated Press reported, citing a variety of experts. According to its article:

South Dakota is one of 13 states that have enacted a food-disparagement law, but there’s virtually no history of the laws being used in lawsuits, said Neil Hamilton, a Drake University professor and director of the Agricultural Law Center in Des Moines, Iowa.

The AP, like a few other outlets, cited the widely covered and unsuccessful suit that Texas ranchers launched against Oprah Winfrey in 1998 after she and a guest on her show made “disparaging remarks about beef” in relation to mad cow disease. In addition, Food Safety News pointed out an unsuccessful 1996 suit that an apple company filed against CBS’s 60 Minutes, after it reported that the company sprayed a dangerous chemical on its fruit. (The FSN article includes an editor’s note disclosing that, “Bill Marler, managing partner of Marler Clark LLP, underwriter of Food Safety News, has been asked to represent defendants Gerald Zirnstein and Carl Custer,” the former USDA scientists.)

Both cases helped establish a basic principle of defamation law—highlighted in articles by The Washington Post, The Wall Street Journal, Reuters, and others—which sets a high bar for success: If the plaintiff is a public figure (and companies like BPI usually are) they have to prove that a news outlet knowingly published false information or acted in reckless disregard to its falsity.

BPI’s lawsuit “is without merit,” said Jeffrey Schneider, senior vice president of ABC News, in a statement. “We will contest it vigorously.”

Indeed, the network seems ready to go to the mat. Following Governor Branstad’s call for a congressional inquiry in April, Food Safety News reported that:

The journalists who spearheaded last month’s LFTB coverage, however, say they’d be more than happy to speak in front of a congressional panel. They have nothing to hide, they say, because their reporting stuck to the facts, and the facts themselves turned people away from BPI’s signature fare.

“Branstad is a governor. He can ask for a congressional hearing if he wants, but we have nothing to hide. There’s no conspiracy,” ABC News senior correspondent Jim Avila told Food Safety News. “It’s not misinformation. We’ve never said ‘pink slime’ is unsafe.”

It does seem like BPI will have a tough time proving that any of the information that ABC reported was knowingly false. The network’s reports were well sourced, and the most serious criticisms were presented as matters of opinion. Among the nine types of allegedly false statements listed in BPI’s suit, the only hard fact that I couldn’t immediately substantiate was the charge that beef trimmings were “once used only for dog food and cooking oil.”

Still, the lack of demonstrable falsity in ABC News’s reports, and the assumption that BPI won’t prevail in its suit, don’t mean that the network’s reporting was flawless or praiseworthy. The tone of its work definitely played up the “ick factor,” as Discovery News’s Benjamin Radford put it, and the national revulsion that followed was out of step with the situation at hand.

A number of commentators tried to hold back the anxiety and alarm. New York Times blogger Andrew Revkin argued “that kids need cheap sources of low-fat protein,” for instance, and USA Today’s editorial board worried that the LFTB uproar was a distraction from graver food safety concerns. KSCJ-AM, a radio station in Iowa, went as far as severing its affiliation with ABC. According to the Sioux City Journal (located in the city where BPI has its last operational plant):

Dennis Bullock, general manager of station owner Powell Broadcasting, said ABC’s reports “hurt our community and helped lead to a loss of jobs at BPI. Many of our listeners were outraged by the stories on ABC and that helped us reach the decision to switch to CBS.”

Media reports from cattle country continue to be hard on ABC News and sympathetic to BPI. In their articles about the company’s lawsuit, for example, the Sioux City Journal and The Des Moines Register focused on the alleged damages BPI had suffered rather than the merits of its allegations of defamation. That’s unfortunate.

The overwrought nature of ABC’s work notwithstanding, the public should be thankful for the scrutiny of BPI. While the pro-LFTB slogan, “Dude, it’s beef,” may be true in a technical way, it’s a far cry from what most consumers expect when they buy “100% ground beef,” and the recent furor has as much to do with transparency as safety. LFTB and the ammonia used to treat it are not labeled because the FDA does not consider them to be additives or ingredients, but rather “processing aids,” which are “substances that have no technical or functional effect in a finished food but may be present in that food by having been used as ingredients of another food in which they had a technical effect.”

But LFTB is markedly different from raw ground beef. While most news reports have described the ammonia that BPI uses as a “puff” or “small amount,” for instance, few journalists have bothered to ask for specifics. When Food Safety News’s Helena Bottemiller dug a little deeper, she discovered that:

To raise the pH of the product high enough to kill bacteria, BPI says it takes beef from 5.7 or so, where it naturally is, to 8.5. (For those rusty on their chemistry, that’s like going from the slight acidity of black coffee to the alkalinity of baking soda).

When it leaves the facility in a large frozen brick it likely drops closer to pH 7.5, according to the company, which leaves the product about 100 times more alkaline than before it was treated.

While ABC News’s series on “pink slime” may have gone overboard, that acidic fact, and the The New York Times’s 2009 revelations about BPI’s spotty safety record, are more than enough to warrant further investigation—and enough to make the company’s charges of defamation against the network seem like another SLAPP suit designed to prevent journalists and the public from asking important questions.

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Curtis Brainard writes on science and environment reporting. Follow him on Twitter @cbrainard. Tags: , , , , ,