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BPI vs ABC: Pink Slime Defamation Suit Goes to Trial Amidst Trumpist War on Journalism

Hmm... looks pink and slimy to me!
Hmm… looks pink and slimy to me!

Four years ago when BPI filed suit against ABC for calling its processed bovine leavings the accurately descriptive term “pink slime,” the big food corporations could get area governors to shove their meatish products down their gullets to show their support for “lean finely textured beef,” the industry’s preferred marketing term for its gruesome fixins.

Now “pink slime” and ABC go on trial today in Elk Point in an America where the man occupying the White House shouts “Fake news!” at any negative press and has yet to revoke his threat to rewrite the First Amendment to allow himself to sue reporters for doing their job. BPI seeks to punish ABC for describing its product in an America where a Russian bank is suing BuzzFeed for publishing documents suggesting Russian influence in the election of that man in the White House. BPI is trying to wring $1.9 billion in damages from ABC in an America where a Congressional candidate physically assaults a reporter who asks politically inconvenient questions, wins election the next day, and “apologizes” for his criminal action to laughter and excuse-making that contends assaulting journalists is just a natural reaction that shows a guy is human.

South Dakota has a law prohibiting “disparagement of agricultural food products” (formally, SDCL 20-10A, enacted in 1994). The statute defines “disparagement” as “dissemination in any manner to the public of any information that the disseminator knows to be false and that states or implies that an agricultural food product is not safe for consumption by the public or that generally accepted agricultural and management practices make agricultural food products unsafe for consumption by the public.”

Thing is, ABC never disseminated false information. The “pink slime” moniker came from a former USDA microbiologist who accurately described how the stuff was made and why it’s pink:

Gerald Zirnstein, the former USDA microbiologist who first used the term “pink slime” and recommended against its inclusion in ground beef, said the first problem is that the BPI process begins with warming the meat scraps just enough so they don’t cook but are easier to separate in a centrifuge.

“At that temperature, you increase the level of pathogens and the level of spoilage bacteria,” Zirnstein told ABC News. “In order to turn this into a product they can potentially sell as ‘meat,’ and that’s, [in] quotations, ‘meat,’ they add ammonia.”

“Ammonia does two things most people don’t realize,” Zirnstein said. “In high levels, it does more than just kill the … pathogens. It also fixes the color of the meat. So the red meat stays pink.”

Zirnstein said that is why he coined the phrase, “pink slime.”

“If that ammonia wasn’t there, if it wasn’t added to kill the bacteria, it would also come in as a gray product and you’d have gray slime,” he said. “Gray slime!”

The former USDA scientist said that’s his main complaint and the reason he recommended against the product’s use.

“Because the ammonia fixes the color into a pink color, it can, quote, ‘pass’ as red meat, but it’s a low-quality product going into the ground beef. The public’s not aware of it, hasn’t been for years. It’s not their fault. Nobody told them” [Jim Avila, “Beef Products Inc. Comeback: It’s Not ‘Pink Slime’; It’s Safe, Nutritious and ‘It’s Beef’,” ABC News, 2012.03.27].

If BPI stands any chance of prevailing, it will have to convince a jury that the statements above are not factual. The defense will need to make sure that the jurors selected from a county that went 67% for Trump seven months ago listen closely to the facts and don’t view this trial as their chance to body-slam the liberal media.

p.s.: South Dakota’s ag disparagement law imposes no penalties on food processors for making patently false claims, as BPI’s Jeff Carlson did in 2012 when he responded to ABC by saying, “‘Pink slime’ doesn’t exist…. ‘Pink slime’ never existed in any way, shape, or form.”

35 Comments

  1. mike from iowa 2017-05-31 10:06

    A major maker of cold cuts and hot dogs sells sliced ham that has an excellent flavor but is covered with a slimy gel-like substance with a faint ammonia type smell.

    I’m guessing, in a pinch ,one could use the sliced ham as wall paper. The slime is sticky enough.

    Bon voyage appetit! :) (so I’m not fluent in French, either)

  2. Porter Lansing 2017-05-31 12:20

    Pink Slime doesn’t exist! Semantics like that remind me of someone on FreePress who tries to use that tactic to assert false narratives and defend his “political majority party” as it begins to decline and die off in SoDak.
    Let it be known … the “substance known as” Pink Slime absolutely exists and it’s in your hamburger. Don’t eat rare hamburgers unless you knew the steer, personally.
    PS … Watch out when you pay $17.99 a pound for beef tenderloin steak in Hy-Vee or any grocer. It’s possible it’s just scraps glued together. “I’ve seen it done.”
    http://www.dailymail.co.uk/news/article-2144981/How-chefs-use-meat-glue-pig-blood-stick-steaks-together.html

  3. Nick Nemec 2017-05-31 12:53

    23 years ago I voted against this bill for a bunch of reasons, my opinion of it hasn’t changed.

    Wasn’t there a similar law suit brought against Oprah years ago? She won.

  4. Troy 2017-05-31 13:28

    CH,

    Read the sentence you reference with the ands and ors. I can read it both ways. But, if it doesn’t stand on its own isn’t it duplicative of the prior phrase?

    Grammatical question: is the last “or” statement tied to the knowingly false? If not, they may have a case because they clearly indicted this product as unsafe.

  5. Darin Larson 2017-05-31 14:19

    Cory, there needs to be a balance here. The portrayal of this product as “slime” ended up shutting down plants that employed hundreds of workers and was a huge economic hit to BPI. It also cost cattle producers millions and makes our beef products more expensive.

    The power that the media wields to make or break industries and people is a huge responsibility. There should be consequences for the misuse of that power.

    This wasn’t a food product safety issue. This was just an attempt to make a salacious story out of “how the sausage is made.”

    The picture in your story looks like soft serve strawberry ice cream to me.

  6. Rorschach 2017-05-31 16:08

    I don’t believe that the 1st amendment has been violated, except by SD’s anti-disparagement law or the trial court’s interpretation thereof. It’s possible that a hometown judge and jury may ring the bell for BPI against the out-of-state deep pocket. But whatever BPI gets from the jury may well be taken away on appeal.

  7. Anne Beal 2017-05-31 17:36

    It’s what hot dogs, Vienna sausages, and bologna are made of. It comes out the grinder and looks just like that before it goes into the casings,
    The ammonia prevents botulism, which is lethal.

  8. Porter Lansing 2017-05-31 17:45

    It’s NOT what hot dogs, Vienna sausages and bologna are made of … unless you’re buying the lowest grade of hot dogs, Vienna sausages and bologna; the kinds made from the stuff swept up from the floor at the end of the day.

  9. Curt 2017-05-31 17:51

    Sorry, I just spilled my covfefe.

  10. Porter Lansing 2017-05-31 18:04

    Continue on valiantly for every future experience.

  11. mike from iowa 2017-05-31 18:06

    As an aside-BPI was one of the worst at hiring guest workers from South and further south of the border.

  12. mike from iowa 2017-05-31 18:11

    Is there anyone out there suggesting people eat ammonia for lunch?

  13. Darin Larson 2017-05-31 18:28

    Some further information on the topic (apologies for the formatting):

    “All types of lean finely textured beef are sustainable products because they recover leanmeat that would otherwise be wasted.The beef industry is proud to produce beef productsthat maximize as much lean meat as possible from the cattle we raise.  It’s the right thing to doand it ensures that our products remain as affordable as we can make them while helping tofeed America and the world.  If this beef is not used in fresh ground beef products,approximately 1.5 million additional head of cattle would need to be harvested annually to make up the difference, which is not a good use of natural resources, or modern technology, ina world where red meat consumption is rising and available supply is declining.”

    https://www.meatinstitute.org/index.php?ht=a/GetDocumentAction/i/76184%20  

  14. Porter Lansing 2017-05-31 18:37

    When you see the sign, “Half-Price Sushi”, keep on driving. 😎

  15. mike from iowa 2017-05-31 19:25

    Interesting link, Darin. There are enough questionable statements made that anyone with any curiosity could be kept busy fact checking stuff.

    Dumbass dubya changed meat inspection from pro-active to don’t act unless you can be 110% sure. Bush put the government at risk of paying for lost profits if the production was slowed or stopped for minor violations. Molly Ivins did a bang up job of reporting this in one of her books about the dumbass from Texas.

  16. Rorschach 2017-06-01 08:34

    Not since chicken wings has anyone found such a successful way to upmarket the lowest quality parts of an animal. Taking the offal that used to be sold for dog food and incorporating it into ground beef may be good for the processor’s bottom line, but think of all the poor dogs facing the offal shortage.

  17. jerry 2017-06-01 09:06

    Mr. Larson, please explain how cattle producers take a loss from the use of pink slime. It would seem to me that the pink slime could be utilized for something else other than a chemical induced food source. By producing a top notch food source as itself seems like it means what it says when you read “Beef, its whats for dinner”, rather than “ammonia induced beef, it’s all you can get for dinner and it ain’t so cheap” It seems to me that cattle producers would be able to market real meat as opposed to fake stuff at the same prices or better as this has to be processed and reprocessed to get the color and texture right. The hundreds of workers that lost their jobs were doing what?

    China is supposed to be buying American beef in July, I wonder what the buyers for the Chinese beef think of an ammonia laden industrial product in their food chain? We here are gonna get their cooked chickens so maybe it is equal trade by the big beef/chicken producers in the US.

  18. Troy 2017-06-01 09:49

    At the end of the day, the more money a packer can make from processing a cow the more money the packer will pay the rancher.

    The denigration of this product as an inferior protein source adversely affected:

    1) Consumers as they had to turn to another protein source
    2) Ranchers because they were paid less for the cow than they otherwise would have been.
    3) Packers because they made less per cow slaughtered than they otherwise would have.

    The winner was the alternative protein source provider whoever that was.

  19. Rorschach 2017-06-01 10:23

    But Troy. What about all of the dogs that had to turn to another protein source? They have been adversely affected by their scraps being amonia-ized and fed to people.

    And who says ranchers were paid less because the amonia-ized offal has not been denigrated, but the public has been made aware of its incorporation into human food products? You made the claim. Show me the money, i.e. the proof that ranchers were paid less for the cow than they otherwise would have been.

    If consumer demand for beef remains constant but less offal is incorporated into human food, ranchers would sell more cattle. Right? Unless and until supply catches up with the increased demand ranchers would make more money – not less. And man’s best friend would be happy, which has to be worth something.

    And if meat packers had less excess profits to lavish on their executives, I’m ok with that too:

    http://www.dailypress.com/business/dp-nws-smithfield-exec-pay-0511-20160510-story.html

  20. Rorschach 2017-06-01 10:29

    Jerry, I don’t think Chinese leaders give a rat’s patootie about what’s in the food their people eat. In fact, they probably consider rat’s patootie a delicacy along with dog meat, horse meat, any any other kind of meat you can think of. If the Chinese have any objection to amonia-ized offal, the objection would be only for purposes of preventing trade from the US.

  21. Troy 2017-06-01 10:46

    Ror,

    1) Basic economic principles are when a finished product (total revenue from a cow) goes up, the value of the raw materials (cow) go up.

    2) Beef demand is not constant but is affected by changes in the relative value of other protein sources.

    3) Various products from a cow have different competitive/demand pressures within different protein classes. Steak compares to pork chop or Salmon. This product is not a beef product like steak. It is a low cost source of protein and competes with products such as similar price point proteins like canned tuna and other fish and a similarly generated product from chicken and turkey or even eggs.

    At the end of the day, winners were poultry producers through out the chain and the losers were:

    1) Those who buy low-cost protein sources in the grocery store.
    2) Cattle ranchers.
    3) Specialized Beef Packers (diversified packers who do beef, pork, & poultry made it up in other products).

    Regarding dogs, they do just fine. This product barely reduces the total pounds of offal (less than 1%) from a cow.

  22. jerry 2017-06-01 10:55

    At the end of the day, the winners were the packers as they own both industries for the most part.

    China stopped the importation of beef because of mad cow, so they seem to be a little more concerned than we are regarding the importation of food into their system. Exportation, will then that is a horse of a different color.

    So then, the beef producers got sizable increases in their live weight for cattle production because of pink slime. Are there statistics regarding that statement showing the actual loss because of that?

  23. Rorschach 2017-06-01 11:11

    Nice try, Troy, but you’re way off base. And you know it.

    1) basic economic principles are when you get less hamburger from a cow the demand for cows goes up. Until supply catches up with demand the price to ranchers increases.

    2) This point is entirely beside the point and merely states the nature of any market. You may stick your head down a rabbit hole, but I’m not going there.

    3) “This product is not a beef product like steak. It is a low cost source of protein”. Are you sure this is the point you want to make? This is what the news story said – at least the low cost part. Pick a lane Troy – as you like to say. Fortunately, or unfortunately, pick your lane there too, your point that this is not a beef product is BS. It was incorporated into hamburger without the public knowing about it and marketed as hamburger.

    Once again, you claim that consumers and cattle ranchers were losers because a news organization ran a story about amonia-ized offal being incorporated into hamburger, but you don’t offer any proof. In fact you undercut your own claim with the general point you made in #2 baove about markets. Most consumers are probably happy to know the truth, and ranchers certainly want their product to be portrayed as a quality product rather than ammonia-ized offal.

  24. Troy 2017-06-01 11:47

    Ror,

    1) This product doesn’t compete with traditional beef products. It competes with other low-cost protein sources.

    2) It is exactly the point. Every beef buyer watches what is happening across the gamut of competitive meats. At minimum, go talk to a protein buyer and ask what affects prices every day. I guarantee you it isn’t some idea beef demand is fixed daily, weekly, monthly, yearly or even longer. Beef demand is a function of what is happening across the broad gamut of protein sources.

    3) This product is a low cost protein source. It is not steak. It is not only my lane. It is the lane in the marketplace in which this product competes.

    What you are talking about how it is used as an additive to a low cost hamburger product which competes with the Spam and pressed turkey products in the grocery store.

    I’m not going to spend hundreds of hours to gather proof. If you want to talk informed about this matter, you have to educate yourself. I’ve already spent my thousands of hours learning the business.

  25. Rorschach 2017-06-01 12:06

    I’m Troy Jones. I make claims without offering proof. Hamburger is not a beef product. I’m right because I say I’m right. I’m an expert because I say I’m an expert.

    I’m glad we got to the root of your assertions here, Troy. Garbage in. Garbage out.

  26. Troy 2017-06-01 13:41

    Ror, I didn’t say either hamberger or this product wasn’t derived from beef. I am talking about its market segment which is low cost protein.

    If you were speaking as a lawyer, I would expect you to take me through every class and experience you have. Nor would I just dismiss your knowledge as garbage in and garbage out. But, like a typical lawyer, you don’t think other’s experience or knowledge is as valuable as yours or since you were never taught it is a lower level of knowledge and experience.

    But, what makes you unique as a lawyer it appears you can’t read very well and grasp new concepts.

  27. Cory Allen Heidelberger Post author | 2017-06-01 22:39

    I get uneasy whenever someone tries to prevent me from calling things what they are. The stuff BPI makes is pink. It is slime. As I wrote back in 2012, I eat it, right along with hot dogs, chicken nuggets, fish sticks, and other things that come from really gross processes.

    But I won’t stand by and let some corporation punish me for using my own language instead of adopting their preferred trademarked slogans.

    Suppose I were some tortured artist type and I had to get sloppy drunk to loosen my blogging voice and write good posts. (I don’t—y’all know I’m biding my time until I can stage a coup and reimplement the 18th Amendment!) Suppose someone got pictures of me engaged in my blog-production process—stumbling around the office drunk, cursing, soiling myself, passing out at my desk, but somehow good blog posts still come out. Suppose someone published those pictures and reported, “This is how Heidelberger makes blog posts. The process is disgusting, but the product is still safe to read.” I don’t think I have any right to sue someone who reports factually about a process that could discourage people from consuming my product.

    Or heck, Soylent Green. If it’s people, you can’t make a law against saying, “It’s people.”

  28. leslie 2017-06-02 16:04

    I wonder how much product is derived from one adult cow/steer? 1 lb? 10? 100?

    the boxed coiled pink python looks really cool. silly putty? the freeze/ heat/ appliance device that makes this stuff is huge and kind of interesting. the old coot who invented it is obviously pissed, like janklow was when rape on the rez charges were highlighted in a book resulting in a similar lawsuit years ago. janklow lost didn’t he?

  29. Donald Pay 2017-06-02 17:20

    That vote Nick took on the ag product disparagement anti-first amendment bill took some guts. Most of the ag lobbyists were lined up behind it. DRA probably opposed. As an ag guy Nick was probably expected to fall in line. I remember testifying against that measure. What was extremely frustrating was that the SD Broadcasters and the SD Newspaper Association were totally silent. Truly gutless folks. No reporters piped up. Gutless. I recall AG Barnett was publicly dismissive of the bill. But it passed anyway, and Mickelson signed it.

  30. Troy 2017-06-02 18:20

    Don,

    That Governor Mickelson is amazing considering you assert he signed a bill 10 months after the plane crash. I think you mean Governor Miller.

  31. Darin Larson 2017-06-02 22:09

    I have a couple of points to make in this discussion:

    1. Finely textured beef is low in fat relative to hamburger and is added to hamburger to increase the amount of lean meat. For example, you can use it to increase 80% lean hamburger to 85% lean hamburger.

    2. I have no love for BPI as packers are notorious for their exploitation of cattle producers. (Thus, the need for the Packers & Stockyards Act.) However, if BPI receives more money for their processed cattle, they can bid more for fat cattle, which makes feeder calves more valuable, which makes ranchers more money.

    3. The use of the word “slime” is not a neutral term. It is a pejorative. It implies that the product is inedible, not fit for human consumption, and/or harmful. None of this is true. It is certainly arguable that ABC was reckless and malicious in its use of the term “slime” which it proceeded to spread in front of the eyes of millions of consumers. It is akin to yelling fire in a crowded theater and causing a stampede for no good reason, except in this case it caused a stampede of consumers to cease consumption of the product.

    4. I find it interesting that Cory dislikes it when arguments devolve into name-calling and trite labeling without examining the facts, but Cory does not see the parallel with regard to this subject. If you want to argue about the advisability, safety, palatability, etc. of the production of this meat product that is all fair game. If you disparage the product with malicious name calling that is not based in fact (ie you imply the product is inedible and not fit for human consumption) and that disparagement is the proximate cause of economic loss, you should be subject to suit for damages.

    In sum, there are limits on our 1st Amendment rights such as those “fighting words” intended to incite violence or the yelling of “fire” falsely in a crowded theater. The use of the “pink slime” pejorative is arguably the use of fighting words in the economic sphere. It was arguably economic violence that was wrought by sensationalist journalism that aimed to increase their viewership.

  32. jerry 2017-06-02 23:31

    1. Finely textured slime is definitely low in fat, but high in ammonia so it has that going for it.
    2. I had asked you before to define the 100’s of workers job descriptions that lost their jobs due to the pink slime expose. Also, indicate the losses the producers took from bpi lowering prices for fat cattle. I have looked and do not see any correlation, perhaps you can show the difference as I do not see it.
    3. ABC was using the term that was given them. There was a prison some place in the south that coined the phrase I believe when they said they would not serve it to their inmates.
    4. As you actually see this slime, you can see it lives up to its name. Why on earth would you support something that is clearly not in the best interests of the beef producer. I am thinking they wouldn’t eat the stuff if they could avoid it.

    So, what did these hundreds of workers do exactly running a centrifuge. There simply had to be a mess so much so that they would have to scrape it up from many places, correct? Then use the ammonia to “purify it” then get it ready to pack in real textured ground meat. In other country’s, that kind of additive would be prohibited, why would we do that here? When the prisons will not take it, why would anyone else? http://www.grubstreet.com/2012/04/30-year-history-bpi-pink-slime.html

  33. PORTER LANSING 2019-02-12 17:45

    PINK SLIME IS BACK!! The USDA’s Food Safety and Inspection Service (FSIS) has given the go ahead for the South Dakota company to label the product ground beef, according to The New Food Economy.
    The filler is made from beef trimmings that previously had been used for pet food, but more recently became an additive to ground beef that humans consume.
    Hoping that Big Burger Bitch in the White House is fed a slime-burger every darn day until he’s removed from office!
    https://www.mnn.com/food/healthy-eating/blogs/usda-says-pink-slime-can-be-labeled-ground-beef?fbclid=IwAR0PcOYxPoy2C5Hx7k9FJ0dHAHwvk4OiKyuDlqI2AzZRLJHX-qUA6wTQKsg

  34. Porter Lansing 2019-02-12 18:57

    Dakota Burgers. That’s what everyone in America should call any hamburger meat that’s not labeled as “slime free”. (Like GMO’s, if your burger isn’t labeled as not having slime in it, you must assume it does.) Then, when South Dakota is synonymous with pink slime burger maybe the good food lovers will contact their round, dusty Thune and demand that pink slime no longer be labeled as just plain hamburger. Calling it finely textured beef product was all that was needed to keep the customer informed. Shame works and BPI donated to Trump to get this designation dropped. It’s up to SD citizens to stop this bulls***.
    BOYCOTT DAKOTA BURGER!

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