Even though the Oprah Winfrey show may have "melodramatized" the "mad cow disease" scare, the show and its guests did not defame Texas beefers, a federal appeals court panel ruled in February 2000. Texas Beef Group v. Winfrey, 201 F.3d 680 (5th Cir. 2000).

    In early 1996, British researchers discovered that the consumption of beef infected with bovine spongiform encephalopathy (BSE), or "mad cow disease," might cause a fatal brain disease in humans. This postulated link between the consumption of beef and brain disease caused great panic in Britain. The panic spread to America via one of America’s most popular personalities -- Oprah Winfrey.

    In April 1996, the Oprah Winfrey Show aired its "Dangerous Food" episode featuring comments from vegetarian activist Howard Lyman, who believed that mad cow disease could cause an epidemic in America bigger than AIDS. On the show Oprah said she was "stopped cold from eating another burger." The show apparently had a devastating impact on cattle prices and sales. On May 28, 1996, Paul F. Engler and Cactus Feeders, Inc. sued Winfrey in state court on several theories, including claims under the state’s food-disparagement, or "veggie-libel" law, called the Texas False Disparagement of Perishable Food Products Act. The plaintiffs also invoked several common law tort theories, including business disparagement, defamation, and negligence.

    The case was later moved to federal court and consolidated with a separate action filed by the Texas Beef Group. The case proceeded to a jury. Before submitting the case to the jury, the judge dismissed the claim under the food disparagement statute. The district court judge questioned the applicability of the statute to live cattle. U.S. district Judge Mary Lou Robinson submitted only the plaintiffs’ business disparagement claim to the jury. In February 1998, the jury rejected the plaintiffs’ claim.

    On appeal, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled on Feb. 9, 2000 in Texas Beef Group v. Winfrey that the lower court decision should stand. The plaintiffs challenged the district court’s dismissal of their claim under the False Disparagement of Perishable Food Products Act. Passed in 1995, the law provides that a person can be held liable for damages suffered by the producers of a "perishable food product" if that person "knowingly disseminates false information" to the public stating or implying that the producer’s product is not safe for public consumption.

    The lower court had determined that live cattle did not constitute a "perishable food product" and that, alternatively, the defendants did not knowingly disseminate false information about beef. The Fifth Circuit affirmed the ruling, citing another Fifth Circuit opinion for the proposition that "exaggeration does not equal defamation."

    "Lyman’s opinions, though strongly stated, were based on truthful, established fact, and are not actionable under the First Amendment," the court wrote. "Stripped to its essentials, the cattlemen’s complaint is that the ‘Dangerous Food’ show did not present the Mad Cow issue in the light most favorable to United States beef."

    The plaintiffs also contended that the district court judge improperly instructed the jury on the business disparagement claim. They argued that the instruction unnecessarily required the jury to determine that false statements were made specifically regarding the plaintiffs’ cattle. They also argued that the trial judge erred by requiring the jury to find that false statements were made "of and concerning the cattle" of the plaintiffs as opposed to the more general "of and concerning beef." However, the appeals court determined that counsel for the plaintiffs did not preserve these issues by objecting to the alleged errors when they were made.

    Judge Edith H. Jones wrote a concurring opinion. While she agreed with and joined in the court’s opinion with regard to the business disparagement issue, she wrote separately because she believed that the False Disparagement of Perishable Food Products Act did apply to live cattle. "The purpose of the statute’s definition is to distinguish perishable from processed food products, not to eliminate protection for some of the farmers and ranchers for whom the statute was intended," she wrote.

    Many legal experts had hoped that, particularly due to the high visibility of the case and its famous defendant, the lawsuit would serve as a test case for the constitutionality of food disparagement statutes. More than a dozen states have similar veggie-libel laws and many of them relax the burden of proof imposed on a traditional defamation plaintiff.

    The plaintiffs petitioned for en banc review but were denied. One of their attorneys, Joe Coyne, told the author that they were still considering an appeal to the U.S. Supreme Court.