Commentary: Another pink slime setback

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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.

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SD  |  November, 02, 2012 at 03:38 PM

Well, Dan, I'm usually in total agreement with your comments, but not today! Everything from voice tones to words in those stories was designed to 'cause harm' to BPI for producing LFTB by DRIVING the public opinion to believe it was a bad product, produced with intent to defraud and even to cause injury to those eating it, when the consumers were shown graffics of cleaning ammonia being poured over the product, for just one instance.

November, 03, 2012 at 06:47 PM

If the issue is about "misleading" that raises the question of the original description of the product as "lean fine-textured beef". Once you treat a food product with a strong caustic chemical like ammonia which is known to cause signifigant effects on meat protein shouldn't the product be more properly described as "chemically modified beef protein"? And then how is that going over with consumers? Consumers have a certain expectation about what certain terms mean and if you mislead them you risk a negative reaction.

kansas  |  November, 05, 2012 at 08:57 AM

Well made points Dan, but just because you didn't prepare for an attack, even if you suspect one is imminent, doesn't mean when you are attacked the attacker is not guilty.

Texas  |  November, 05, 2012 at 03:43 PM

Check your facts. It's ammonium hydroxide that is used, not ammonia. Ammonium hydroxide is commonly used in many food products. However, the suit was dumb. They'll never be able to prove intent to harm. Their intent was to sensationalize, which is not a crime.

November, 05, 2012 at 06:56 PM

Paul, If you bubble ammonia gas into water you form ammonium hydroxide. But that's beside the point. People pay $8 or more per lb for choice steak not "lean finely-textured beef". Cattlemen need to defend their brand, it is valuable to you all. Consumers need to be able to trust their food, don't give them a reason to be uncertain. I bet BPI caused at least a billion dollars in damage to the cattle business.

November, 05, 2012 at 08:26 PM

Have you ever ate chocolate? Its treated with ammonia the exact same way but no one attacks the chocolate industry.

SD  |  November, 05, 2012 at 08:29 PM

A food product exposed momentarily to ammonium hydroxide gas has been common for many years, and for many food products for the purpose of making them SAFER to consume. Why does it become "news" and a scandal when the product is beef? Is there any way to determine who, other than BPI and the employees losing their jobs? Speculation, yes, solid information.....doubtful. BTW, saving the little bit of beef muscle meat recovered from the fatty trim (which is too costly to trim closely by hand) of each carcass adds TONS of beef to the market, providing more food and cutting the beef ecological footprint, both worthwhile events. There simply is NOTHING that is BAD about the product, BPI, the process, or the elimination of the e coli possibilty in that product. So, of course, those who love to attack beef will turn all the good of the product into some sort of scandal!!!

MT  |  November, 06, 2012 at 10:48 AM

Nice piece of armchair quarterbacking Dan. Except for one teensy weensy detail. The fanatic hatemongers who destroyed BPI are incorrigible zealots, they cannot be reasoned with. No amount of explanation or factual refutation would have de-fanged them. Only lawsuits forong them to be responsible and accountable for damage they achieve will slap any sense into them. And that reasonable hope will vanish with the failure of the BPI suit. So, American agriculture is doomed to a painful unreasonable extinction at the hands of a few certifiably crazy people. Let's get busy moving our agricultural assets and expertise offshore to Brazil, southeast Asia, China, eastern Europe, selected locations in Africa. The miserable anti-farm zealots can eat expensive imported food we will have produced outside the reach of their nasty hateful vandalism.

tonn pastore    
Florida  |  November, 06, 2012 at 02:14 PM

Not pink, more of a manilla envelope color

Delaware  |  November, 07, 2012 at 05:47 PM

Your $8/lb steak has never, ever contained LFTB. Not now, not ever. Never. Why are you being absurd? Rick, don't give us a reason to think you are an idiot. I bet you set back the art of reasoned thinking several generations. Hey, I suppose we all should be entitled to our opinion, eh?

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