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September 22, 2012

Producer of 'pink slime' beef sues ABC for defamation

By Tim Carman
The Washington Post

— Of all the media outlets that have taken shots at Beef Products and its "lean, finely textured beef," the South Dakota-based company apparently feels slimed by only one: ABC and its ABC News division.

The largest U.S. producer of "pink slime" — once widely found in fast-food burgers, supermarkets and the federal school lunch program — filed a defamation lawsuit Thursday against the network, claiming it went on a campaign that cost Beef Products $400 million. Anchor Diane Sawyer and reporters Jim Avila and David Kerley are also named as defendants.

"ABC ran for about 30 days a vicious disinformation campaign that consists of almost 200 false and misleading defamatory statements," said Dan Webb, a trial lawyer and chairman of Winston & Strawn, which is representing Beef Products.

The 250-page-plus complaint asks for a total of $1.2 billion because South Dakota's Agricultural Food Products Disparagement Act allows a plaintiff to triple the amount of damages that result from the defendant's actions.

"The lawsuit is without merit," Jeffrey Schneider, a senior vice president of ABC News, said in a statement. "We will contest it vigorously." ABC declined to comment further on the lawsuit.

But the network noted that many other media outlets have reported on lean, finely textured beef, from USA Today to an online petition to MSNBC. ABC also singled out a 2009 New York Times investigation that published the first-known reference to "pink slime," coined by a former U.S. Department of Agriculture microbiologist, Gerald Zirnstein, in 2002. (Zirnstein, incidentally, served as a "whistleblower" in ABC News' own investigation and is named in the suit.)

When asked why Beef Products was singling out ABC News, and not suing the other media outlets, Webb indicated it was a matter of volume and tenacity. The lawyer said that starting on March 7, ABC aired 11 broadcasts, published 14 online reports and issued social-media statements that, collectively, contained those alleged 200 false statements.

"What happened with ABC News is that they started this sustained, concerted, long-duration attack where, night after night, they emblazoned on the minds of consumers that we're selling a slime product that is non-nutritious and is unsafe," Webb said.

One media libel defense lawyer thought Beef Products could have a tough time in court.

"I would say they have a very high burden of proving that ABC knew what they said was false at the time they said it," said Laura Handman, a partner at Davis Wright Tremaine in Washington.

Beef Products, according to its attorney, has been forced to shutter three of its four manufacturing facilities after sales dropped 80 percent immediately after the media reports. The company, he added, has laid off 700 employees.

Even though food-safety allegations have been leveled against Beef Products since at least the Times investigation in 2009, the company came under serious attack in the past 18 months from a number of media sources. Many seemed to take their cue from an April 2011 episode of "Jamie Oliver's Food Revolution," in which the British chef demonstrated how lean, finely textured beef is made. (The series aired on ABC before it was canceled last year.)

"This is not fit for human consumption," he said of the meat that is treated with ammonium hydroxide to kill potential pathogens.

On March 5, the Daily, an online news source, reported comments from two former USDA microbiologists and noted that the USDA planned to buy about 7 million pounds of lean finely textured beef for the school lunch program.

One day later, Houston blogger, Bettina Siegel created a Change.org petition asking the USDA to remove pink slime from the school lunch program. She got more than 250,000 signatures. The ABC reports began the next day.

The USDA responded by giving school districts across the country the option of ordering ground beef with or without lean, finely textured beef for the 2012-13 school year. So far, the agency said, states have requested more than 20 million pounds of ground beef without lean, finely textured beef — and only 1 million pounds that may contain it. The USDA said it cannot compare those figures with orders from previous years.

If America was increasingly alarmed by Oliver's 2011 program, so was Beef Products. The company and others, Webb said, approached ABC about what it considered false statements on Oliver's program.

"Not only did they ignore the evidence," Webb said about ABC, "they then went on this crusade against us," with broadcasts on "World News Tonight" and "Good Morning America."

The attorney said major supermarket chains stopped buying the product — fast-food restaurants such as McDonald's had already halted purchases — after the ABC reports.

"They hate this product now," Webb said about customers. "ABC has managed to convince the American consumer that we're selling some filthy product that is somehow hidden away in ground beef."