Should laws restrict freedom of speech when people comment on agricultural products if the commentor knows or should have known that their comments were false? This appears on its surface to be a simple question, but instead has great complexity given the sometimes difficulty in establishing truth and falsity.
Americans value freedom of speech as a fundamental right. But speech can be challenged in certain circumstances. When speech causes monetary injury from a defamatory statement made in writing, it is called libel. Food libel laws, although each state has its own version, allow a food manufacturer or processor to sue a person or group who makes disparaging comments about their food products if that person knowingly disseminates false information to the public. The definition, then, of what is false becomes important; in Texas, for example, the jury or the judge determines what is false, “based on reasonable and reliable scientific inquiry, facts, or data.” Although truthful information is essential, scientific studies can be biased or conflicting. With close relationships between agencies like EPA and FDA and product industries, it is difficult to challenge industry and agency “science” when concerns develop. When the public obtains information that does not match up with the agency or industry messaging, can they speak freely or are they afraid to speak for fear of getting sued? How do they know when they are potentially breaking libel laws? Is this dilemma an indirect gag on freedom of speech?
Brief History of Food Libel Laws
In 1991 Louisiana became the first state to pass an agriculture disparagement law with the enactment of the Agriculture and Aquaculture Disparagement Act, following an E. coli outbreak traced back to cantaloupe growers in the state. The growers believed that they had suffered economic losses because of inaccurate or exaggerated reports about the outbreak, and they wanted stronger laws to protect them. The Louisiana law established that media, or individuals, who disseminate false information that creates a financial loss for an agriculture or aquaculture product or business can be held responsible and required to pay restitution equal to, and sometimes greater than, the loss. Two years earlier, before the cantaloupe outbreak, CBS’s 60 Minutes had aired a piece regarding potential cancer from Alar, a product sprayed on apples. After apple sales went down, growers sued, but the lawsuits were unsuccessful. Lobbyists then pushed state legislators to pass new laws that would protect business.
After the Louisiana law passed, similar laws passed quickly in 12 other states to limit what can be said about agricultural products and production practices: in Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota, and Texas. All of the states provide for civil penalties, except for Colorado, which has criminal penalties for disparagement. Agriculture disparagement legislation was also introduced but failed to pass in a dozen other states in the 1990’s; the last state that introduced a bill was Ohio in 1997. These agriculture disparagement laws have not changed since North Dakota passed the last bill enacted in 1997.
2026 – Florida Attempts Expansion
With the introduction of Florida Senate Bill 290 and House Bill 433 in the 2026 legislative session that made substantive changes to the disparagement law the status quo changed. Florida had passed its agriculture disparagement law in 1994 to protect the state’s citrus industry and other perishables that growers believed could be harmed by ‘misinformation.’ According to an archive record investigation of the passage of the 1994 law, an industry lobbyist stated that industry “in no way intend[ed] to infringe on the First Amendment” while at the same time he bragged about how much easier it was to silence speech when he could refer to a statute, especially if it had punitive damages in addition to actual losses. Another industry lobbyist described the bill as “proactive legislation that puts agriculture and industry on the ‘offensive’ and serves notice to media and activists that “they are responsible for their actions.” The same lobbyists worked in many of the other states that passed agriculture disparagement laws.
The new Florida bills attempted to expand the current Florida agricultural disparagement law which is limited to perishable food products like fruits and vegetables. The proposed amendments would have broadened the scope of the law in major ways. First, removal of the word “perishable” would change the scope from just certain fruits and vegetables to all agricultural products. Second, the amendments explicitly add “farm practices” to the law, which would include the fertilizers and pesticides used, not just the food products. Organizations like Organic Consumers Association, The Weston A. Price Foundation, and others, contacted their members, who contacted legislators, Floridians contacted their legislators, and the amendments to the language of Florida SB 290 and HB 433 were removed from the final Ag bill.
Is Big Ag concerned about the move to more healthful foods?
With Florida as a hub for health freedom, legislation that expands these libel laws to include not just food items but also farming practices like pesticides was certainly a surprising new development in an area of public policy that had remained unchanged for so many years. Federal food and health agencies are raising awareness about ultra-processed foods on America’s grocery store shelves with the release of the MAHA Commission Report, Make Our Children Healthy Again. MAHA organizations have also been voicing concerns about the impact of synthetic fertilizers and pesticides on our food supply. With the advent of social media, the public can be quickly informed of new products and practices that can make our food less safe. Information that suddenly goes viral could have a large impact on agricultural businesses.
Even before social media, unfavorable information about food went “viral”
In 1996 the Texas food libel law was tested when cattlemen sued Oprah Winfrey over her “Dangerous Foods” broadcast, which raised questions about American beef following a scare about “mad cow” disease in the UK. The broadcast included claims that mad cow disease could potentially make “AIDS look like the common cold.” Regarding the agriculture disparagement claim, the court dismissed, judging that the law did not apply to the case because cattle were not sufficiently “perishable.” The Florida amendments addressed this issue of perishability.
Although Winfrey was victorious, some years later, the lead plaintiff, head of an Amarillo-based beef and pork production company, discussed the results of the case, stating that they got Winfrey to “clean up her act.” This position is similar to the objective articulated by the proponents of the original Florida disparagement law: having a law on the books, with possible litigation including possible punitive damages, creates a chilling effect on speech.
In 2012, ABC News was sued over its reporting on “Lean Fine Textured Beef” (LFTB) that had become known as “pink slime.” While ABC didn’t originate the stories about LFTB or the term “pink slime,” which had been widely shared in early social media and print reporting since 2009, the impact of the ABC broadcast on beef sales was quick and severe: beef sales dropped precipitously. Beef Products Inc. (BPI) sued ABC, and the parties settled as the case was about to go to the jury. BPI considered the term “pink slime” to be disparaging, whereas ABC considered the term fair game; the term had already been shared widely, even by The New York Times. Unlike the other media, however, the ABC story went viral, and it appeared that BPI could prove approximately 1.4 billion in damages. With the potential for a jury award of punitive damages that could have tripled the damages, ABC settled the case with $177 million for BPI.
What’s next for legislation?
The legislation introduced in Florida, if passed into law, would have expanded the power of big industry while restricting the rights of the people. What is attempted in one state is often not a stand-alone effort, as was revealed by the Florida archive record investigation. National interests bring controversial proposals forward slowly and will float “trial balloons,” to see what the public response will be. With the additional scrutiny of farming practices, food consumers becoming more engaged than ever, and with the MAHA focus on improving agricultural practices and labeling, making healthier food options available, similar legislation may be introduced in Florida again since the bill sponsor has stated his desire “to continue the conversation,” as well as introduced in other states.
The current conundrum
Setting public policy is always a balancing act for lawmakers. Large food producers provide much of the sustenance our nation relies on. While many envision a future with more sustainable practices and local heathy food production, much work needs to be done to get there. The United States is a net exporter of food, which sustains our economy and stabilizes food security for billions of people. Shouldn’t business be protected from people who make false assertions about a product or a practice? But the public has a right to know what is in their food and how it is produced. The public and the media should also have the right to be able to question the production of food, whether it is safe or unsafe to consume, and the nutrition it contains.
The conundrum today is that what should be so simple, avoiding false statements about a product, is not. Since “the science” can change, what was once true becomes a retracted paper, and what was once false is then known to be true. These laws, which some believe are unconstitutional, have not been litigated before the United States Supreme Court. The high possible penalties act as a deterrent to the free exchange of information and ideas on food, and any additional language like that in the Florida amendments will only increase the chilling effect. These laws are not necessary; there are already other laws that can be used to protect food producers and determine the truth or falsity of any messaging.
