By Eric Nelson

The Free Press

For the second year in a row, environmental groups and food safety activists have dodged the legislative bullet when a food disparagement bill fired off in Olympia fell short in committee. Sponsored by a slew of legislators representing growers in Eastern Washington, Substitute House Bill 1098 would have allowed lawsuits for disparaging comments about apples, bananas and carrots, among other fruits and vegetables.

"I watched it with amusement and bemusement," said Jerry Sheehan, ACLU Washington's legislative director. "I never thought it was more than a joke. It's clearly a hero bill."

But it is no joke in the 12 states that have recently passed "food disparagement" laws, also known as "banana laws." These gems of legislative lameness allow civil law suits for public statements suggesting that pesticides on food might just kill you someday. Florida, for instance, is particularly feisty about its fruit.

Most analysts agree that these laws could never survive a legal attack on First Amendment grounds. However, that's not the point. These laws are close cousins to SLAPPs, Strategic Lawsuits Against Public Participation. The aim is to gag public interest groups who raise legitimate questions and create consumer concern.

Here's what our wise legislators had in mind with Substitute HB 1098:

"Disparagement means dissemination to the public in any manner of any false information regarding the application of any agricultural chemical or process to agricultural commodities or products, or false information alleging any disease to agricultural commodities or products, that is not based on reliable scientific data, that the disseminator knows or should have known to be false, and that causes the consuming public to doubt the safety of any agricultural commodity."

The bill claimed not to infringe on "customary debate" - whatever that is. Unlike normal libel actions, the plaintiff need not prove actual damages. The plaintiff must merely show by a preponderance of the evidence that some trash-talker damaged the marketability of their produce.

Those apples, my friend, are rotten to the core.

Speaking of apples, remember Alar? Apple growers from Eastern Washington sued the Natural Resources Defense Council and "60 Minutes" for a report on the nasty effects of Alar (aka "daminozide"), which breaks down into a known carcinogen and cannot be removed by washing or peeling the apple. Uniroyal, the manufacturer, eventually took Alar off the market, but apple growers sued both organizations, as well as local TV stations, claiming $100 million in lost sales.

"60 Minutes" and NRDC, which authored a report on Alar called Intolerable Risk, won dismissal of the suit prior to trial. The Ninth Circuit Court of Appeals affirmed the dismissal last October, holding that the growers had not proven the falsity of the "60 Minutes" report under the prevailing standard for "trade libel."

But with "food disparagement" laws sprouting like weeds across the states, agricultural and chemical interests may have an easier time dragging a public interest group into court and bleeding them to death before the group can defend itself on the truth of its statements or the unconstitutionality of the statute.

When the ACLU asked a Georgia state court to strike that state's food disparagement law, the court refused to consider it until a group was actually sued under the statute.

So step right up, folks, and be the first on your block to be sued for fruit slander.

Enviros Circle the Wagons in Olympia
Environmental advocates didn't make much headway during this spring's two-month legislative session in Olympia. But at the same time, they were able to block a handful of alarming proposals that would have made environmental protection an endangered species in our state.

"This session was more defensive than offensive," said Kristin Rowe of the Washington Environmental Political Action Committee (WEnPAC). "I wish there were more good things to report." Long-time Sierra Club lobbyist Bruce Wishart was taken aback by the swarm of far-right proposals, such as one that would have permitted the continued manufacture and sale of CFCs in Washington state-despite a federal and international ban on the ozone-depleting chemicals. "Certain House members seemed to actually revel in being out of step with the mainstream."

Here's a rundown of some of the more significant activity:

So-called "right-to-pollute" legislation was defeated, despite aggressive lobbying from the Association for Washington Business, Wayerhaeuser, and the pulp-and-paper and aluminum industries. The proposal would have limited the ability of citizens' to collect from private companies damages for injuries suffered from toxic releases. It also would have granted immunity to corporate polluters from civil and criminal enforcement in certain cases.

As part of this bill, companies prone to environmental problems were pushing for the right to conduct "self-audits," which, if problems turned up during in-house inspections, would have granted them amnesty from some criminal prosecution and civil liability. What's more, these "audits" would have been kept secret from the public, even if serious violations were discovered. The legislation passed the Republican-controlled House but died in the Democrat-controlled Senate Ecology and Parks Committee.

Also failing, to the relief of Washington greens, was a "takings" proposal based on last fall's unsuccessful Referendum 48, which voters rejected by a 60-40 margin. Introduced by Wenatchee Rep. Dale Foreman, a Republican candidate for governor, the bill would have given property owners the right to collect monetary awards from the government if land-use or environmental laws resulted in a decrease in the assessed value of their land. The measure passed the House but stalled in committee in the Senate.

Elsewhere, a legislative defeat may lead to a grassroots victory. The elimination of the Puget Sound Water Quality Authority has sparked an initiative campaign calling for a broad-based agenda to protect Puget Sound and other coastal waters from further degradation.

Drafted by People for Puget Sound, the proposals would require state and local governments to comply with water-quality laws that govern Puget Sound, offer tax breaks for property owners who protect salmon streams, expand environmental protection to bays and other coastal waters, maintain close regulation of oil tankers, and ban offshore oil drilling and exploration. Anyone interested in the campaign can contact Mike Sato at People for Puget Sound in Seattle, (206) 382-7007, by e-mail at sound@eskimo.com, or on the World Wide Web at http://hal9000.futureinfo.com.

The Legislature passed one anti-environmental bill, subsequently vetoed by Gov. Lowry, that would have drastically weakened the state's ability to enforce the Growth Management Act. Cities and counties whose comprehensive plans don't meet the GMA's muster would have faced limited enforcement.

Lowry signed into law a bill that exempts wastewater discharge permits from review under the State Environmental Protection Act. The upshot is that polluting companies, such as dioxin-producing pulp-and-paper mills, will not be subject to close scrutiny by state officials or citizen activists.

Petition Seeks to Ban Bear-Baiting
True of false: People in Washington state are allowed to bait wilderness areas with meat in order to attract bears, cougars, and bobcats to a specific area, and then return a few weeks later and shoot them dead at point-blank range. People are also allowed to send hound dogs with radio transmitters in their collars in pursuit of these animals, chase them up trees, and then wait for their masters to come to blow the frightened animals away.

If you guessed false, you may be interested in Initiative 655.

A coalition of animal-rights groups, including the Progressive Animal Welfare Society (PAWS) and the Washington Wildlife Alliance is circulating petitions seeking a ballot measure that, if passed, would ban the practice of baiting and hounding in the hunting of bears, cougars, and bobcats.

Other states, including Oregon and Colorado, have passed similar bans in the recent years. Washington could be next if animal rights advocates in our state gather 181,000 signatures by June 30. Attempts to persuade the state Wildlife Commission to change hunting laws have fallen on deaf ears.

While the three animals named in the petition are not listed as endangered or threatened, they aren't exactly multiplying like rabbits either. There are 25,000 to 50,000 bears in Washington; in 1994, 1,073 were reported killed, 322 by baiting and 204 by hounding. The cougar population stands at only about 2,400; in 1994, 177 were gunned down, all but one through baiting. More than 800 bobcats were slaughtered in 1994, 423 by hounding.

Not surprisingly, the initiative is being opposed by the National Rifle Association and an innocuous-sounding group called Washington Citizens for Wildlife Conservation, which is funded by the national pro-hunting group, Wildlife Legislative Fund of America.

Anyone interested in signing the petition or volunteering for the campaign can contact Lisa Wathne, coordinator of the Washington Wildlife Alliance, at (206) 633-3435; 2319 N. 45th St., Suite 203, Seattle, 98103.

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Contents on this page were published in the April/May, 1996 edition of the Washington Free Press.
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