ABC News has filed a motion to dismiss a $1.2 billion defamation lawsuit brought in September by Beef Products Inc., the South Dakota-based specialty processor, over news coverage of Lean Finely Textured Beef (LFTB), better known as “pink slime.”
The lawsuit claimed that in more than 200 statements, the news organization’s coverage of the controversy over LFTB “damaged the company by misleading consumers into believing the product is unhealthy and unsafe.”
The “damaged” part is not in dispute; the “misleading” part most certainly is.
According to multiple news sources, the BPI lawsuit is seeking damages under South Dakota defamation law and a 1994 state law that allows businesses to sue anyone who knowingly spreads false information that a food product is unsafe.
Along with ABC News and its parent company, the suit named ABC news anchor Diane Sawyer and correspondents Jim Avila and David Kerley as defendants.
It also named Gerald Zirnstein, the USDA microbiologist who first called the product pink slime, former federal food scientist Carl Custer and Kit Foshee, an ex-BPI quality assurance manager who was interviewed by ABC.
In response, ABC News’ lawyers argued that while “pink slime” may come across as unappetizing, it is not incorrect. Lean, finely textured beef is both pink and—like all ground beef—has a slimy texture, the lawyers argued.
“That term, while unflattering, does not convey false facts about the color or texture of LFTB and is precisely the kind of ‘imaginative expression’ and ‘rhetorical hyperbole’ that is constitutionally protected,” a memo attached to the motion reportedly stated.
Silent and invisible
Nobody needs to make the case that the controversy over pink slime caused enormous economic damage to BPI.
Virtually all of its leading customers quickly bailed, media coverage in general was sensationalized and in the wake of all the lost business, company officials were forced to close three plants and lay off about 700 workers.
The fallout was severe and resulted in a crushing blow to the company’s fortunes.
Unfortunately, although BPI would like to portray what happened as a smear campaign, it was instead a colossal failure of industry and, unfortunately, the company, to anticipate problems with the product and the term pink slime, compounded by a do-nothing attitude on the part of the trade groups and its hired experts, who should have stepped up early in this debacle to defend BPI and denounce its detractors.
That didn’t happen until way too late.
Moreover, this entire sordid episode didn’t originate with some expose by ABC News or any other mainstream news organization, for which they could then be held accountable.
The controversy exploded across social media, and was driven primarily by consumers outraged that USDA’s School Lunch program was using so-called pink slime in their children’s hamburgers and meatloaf.
And it didn’t help that a couple of celebrity chefs piled on with negative comments about not just pink slime, but the very concept of using “additives” in ground beef.
So there were ultimately two fronts on which this battle should have been fought, and wasn’t: One preceded the controversy; the other took place in real time as both social and news media were slamming the product.
First, and most important, was the pre-emptive fight. Long before this controversy erupted, it should have been obvious to all concerned that the very name pink slime was a time bomb waiting to explode.
You couldn’t dream up a better headline “grabber” if you had months to prepare—which BPI and its allies did.
BPI’s customers and key media members needed to be inoculated to the impact of pink slime long before this became news. That groundwork was never laid.
And how would you do that? By focusing on why LFTB was developed and why it was accepted. That message would have touched on notions of sustainability, ie, utilizing a nutritional ingredient rather than just throwing it away, coupled with the dietary importance of marketing a leaner/lower-fat ground beef formulation by adding pure beef protein instead of more high-fat trimmings.
Cost should have never been the focal point of the controversy, nor food safety. However, once the company and the industry were on the defensive, the debate was about nothing else but “cutting costs” and using ammonia to “sanitize” the product. You don’t win those debates.
And once pink slime started heating up on Facebook and Twitter and leading the evening news, a phalanx of experts should have been unleashed within hours to counter the falsehoods and negativity being disseminated.
It’s an axiom in public relations that the real challenge in messaging comes not during a crisis but before.
By the time the building’s on fire, it’s a little late to start figuring out where the fire extinguishers are located.
Legal experts have stated that BPI faces “an uphill battle” because the company must prove that ABC News management and news anchors knew the stories were false.
That’s not an uphill battle, that’s a slam dunk for ABC’s legal team.
They will win in the court of law, just as those who spread the nonsense about pink slime have already won in the court of public opinion.
The opinions expressed in this commentary are solely those of Dan Murphy, a veteran food-industry journalist and commentator.
