The human and property costs of the disaster were enormous, but Australian wildlife experts have also estimated that possibly a million or more animals may have died as well, including those living in the wild and at four wildlife sanctuaries that were destroyed in the fire.

On Feb. 7, 2009, a day that was dubbed “Black Saturday” in Australia, deadly bushfires swept through the southern state of Victoria, leaving 173 people dead and 500 injured. In addition, more than 2,000 homes were destroyed, and experts estimated that the number of affected wildlife (killed or injured) could climb well into the millions.

With its abundant forests and hot dry climate, Australia had often suffered from deadly bushfires, most notably the 1939 “Black Friday” blaze in Victoria, in which 71 people were killed, and the 1983 “Ash Wednesday” fires in Victoria and South Australia, where 75 people perished. The scale of the recent fires—attributed to extreme weather conditions coupled with a severe and protracted drought that had created tinder-dry vegetation across the state—was unprecedented and left the country in a state of shock.

On February 7, Victorians were told to brace for the “worst day” in the state’s history; weather forecasters warned of a record heat wave with temperatures soaring to 46.4 °C (115.5 °F), combined with gale-force winds of up to 90 km/hr (56 mph). That day more than 47 major fires erupted across the state, 14 of them claiming lives or causing significant damage. The most deadly conflagration, known as the Kilmore East fire, which claimed 121 lives, was sparked by a faulty power pole near the township of Kilmore East, 60 km (37 mi) north of Melbourne. The flames quickly jumped a major highway and roared into a forest where they turned into a giant fireball, dwarfing the resources of local firefighters who could only flee in its path. Aided by steep slopes and powerful winds, this fire raced through a series of townships, including Kinglake (where 38 people died), Strathewen (27 perished), and St. Andrews (12 were killed), catching residents by surprise and trapping many in their homes. Some sought to escape by car as the fires approached, but dozens died on the roads as they were overtaken by the fire, which leapt 100 m (328 ft) above the tree line and was powerful enough to kill with radiant heat from 300 m (984 ft).

Late in the afternoon a sudden change in wind direction pushed the fire to the northeast, bringing new towns into its path. A parallel fire, known as the Murrindindi fire, also blew to the northeast, swallowing the unsuspecting tourist town of Marysville, where 34 people lost their lives. Fire experts said that these two fires alone released energy equivalent to 1,500 Hiroshima-sized atomic bombs.

Fires also ravaged other parts of the state, including the eastern region of Gippsland, where 11 people were killed. In some townships there was no more than a handful of survivors after the fires swept through. The township of Flowerdale, 65 km (40 mi) north of Melbourne, was cut off from the world for almost 48 hours as its residents huddled in the local pub after their town was razed to the ground. A massive rescue effort was undertaken across the state with thousands of volunteers helping to shelter and provide for the survivors and the families of the victims.

The government immediately announced that a Royal Commission would be formed to look into the disaster but declared that the emergency services had done the best that they could in the face of an unprecedented natural phenomenon. When in August the Royal Commission released its 360-page interim report on the tragedy, however, it was highly critical of many aspects of Victoria’s emergency service agencies. In particular, the report disclosed that the public warnings given by the Country Fire Authority (CFA) to the communities in the fire’s path were inadequate and in some cases nonexistent. It revealed that the CFA personnel in charge of managing the fires failed to issue timely warnings, with the result that many people did not know that they were in danger until the fire was upon them. In addition, serious deficiencies were pinpointed in the command and control systems of the emergency services agencies, a problem that led to confusion, inertia, and poor decision making at crucial times. Among the 51 recommendations included in the report were changes to the “stay or go” policy that, before February 7, had advised residents to choose between remaining and defending their property against a fire or leaving the property early.

The report concluded that since 113 people died in their homes on Black Saturday, many homes could not be defended against a major bushfire, and it recommended that in future fires residents evacuate their homes rather than try to save them. The Victorian government pledged to implement all of the Royal Commission’s interim recommendations in time for the beginning of the 2009–10 fire season. The Commission’s final report, expected in July 2010, would evaluate longer-term issues, such as preventative burning and housing standards.

The emotional scars from Black Saturday continued to resonate; many affected families refused to rebuild their homes, saying that the risk of another fire was too great. The tragedy reminded Australians that the notion of living in the bush might still hold romantic appeal for many city dwellers, but it carried with it the very real and deadly threat of bushfire.

—Cameron Stewart

Images: A firefighter shares his water with an injured koala at Mirboo North after wildfires swept through the region on Monday, Feb. 9, 2009—Mark Pardew/AP; map of the 2009 Australian bushfires in Victoria, Australia—EB, Inc.

Federal Legislation

This time of year—given the lowering temperatures and the end of the calendar and income tax year—seems an appropriate time to revisit two federal initiatives that have been stalled in committee since their introduction.

• The Truth in Fur Labeling Act, H.R. 2480 and S. 1076, would require the labeling of all fur products regardless of value, closing a loophole that currently exempts products with fur valued up to $150. The bill was introduced in both chambers in May and has remained in their initial committees, despite recent revelations regarding fur products being marked as “fake.”

  Please let your Representatives and Senators know that it is time to bring truth to the labeling of fur and faux fur garments.

• The Humanity and Pets Partnered Through the Years (HAPPY) Act, H.R. 3501, would amend the Internal Revenue Code of 1986 to allow a deduction for pet care expenses. Qualified pet care expenses mean the provision of care, including veterinary care, for any domestic animal kept for non-commercial purposes. The deduction would be limited to $3,500 per year.

  Call or write your U.S. Representative and let him/her know if you support this bill.

Legal Roundup

• The popular Fox TV show “Bones,” which was ranked by Nielsen as the most DVR’d show of 2008, recently featured an animal rights vegetarian story line in the episode titled The Tough Man in the Tender Chicken. The episode included footage from the group Farm Sanctuary regarding unethical poultry factory farming practices. The star of the show, Emily Deschanel, who plays Dr. Temperance Brennan, is an ethical vegan and it was by her request that writer Hart Hanson included this information. Many thanks to Emily and Hart. Contact Fox Broadcasting directly [E-mail: askfox@fox.com] to let them know that you appreciate programming on animal welfare issues.
• A news show aired earlier this month on CBS revealed an undercover investigation that found items labeled as faux fur—or not labeled as containing fur at all—actually contained fox, rabbit or raccoon fur. The story, Is Your Faux Fur Really Dog?, came out of Los Angeles and the investigation was conducted with the help of the Humane Society of the U.S. To end the fraudulent mislabeling of real fur items, contact your federal legislators to support the Truth in Fur Labeling Act (above). You can also contact the CBS station [E-mail: kcbstvnews@cbs.com] and let them know that you appreciate their reporting on this subject.

For a weekly update on legal news stories, go to Animallaw.com.

On Halloween night, Manu Ginobili, a shooting guard for the San Antonio Spurs, swatted down a bat that got loose in the AT&T Center. The bat had been loose for most of the game and after several failed attempts by the Spur’s mascot to catch the bat in a net, Ginobili got close enough to hit and kill it. After the game, Ginobili said: “I didn’t think it was a big deal. Then the whole arena started chanting my name” and also referred to the bat as a “just a mouse with wings.” The Spurs’ head coach noted, “He’s never ceased to amaze me the years he’s been here. … He just did it again.” Some reports even suggest that this may be one of Ginobili’s “greatest athletic achievements” next to winning a gold medal in the Olympics and an NBA Championship. Highlights on ESPN replayed the clip over and over in order to brag about his great reflexes. Reports also say that the real burden is on Ginobili, because he now has to go through a series of rabies shots. Does this seem wrong to anyone? An entire stadium cheering over the death of a defenseless creature and giving praise to this person as if he has accomplished something great.

PETA seems to think something is wrong and finds nothing funny about his new nickname “Batmanu.” PETA says that Ginobili has “no respect or consideration for lives humbler than his own.” After ESPN’s gratitude given to Ginobili, the angry emails began pouring in, some of which compared Ginobili’s actions to that of Michael Vick. Is this comparison unfair to Ginobili? Shouldn’t there be more repercussions than a few rabies shots? Should the NBA impose some sort of fine? If not, it seems that the cheers will not die down anytime soon.

While there are Texas statutes that govern the treatment of wild animals, these statutes do not explicitly protect bats, nor do they seem to help guide the actions in a circumstance such as this one. In fact most of the applicable statutes only apply to wild animals that a person owns or transports. However, using common sense, it appears there are several better ways that NBA officials could have handled this situation. If the bat was that much of a distraction, the stadium crew could have delayed the game for a brief time until they could properly capture the bat or call animal control. That is how they previously handled similar circumstances when the Atlanta Hawks mascot (a live hawk named “Spirit”) escaped into the stadium during a playoff game in 2009. Officials stopped the game for about 10 minutes until they retrieved the bird. Why could the Spurs not do the same? Is it because they had no particular interest in protecting such an animal that they had no attachment to? Whatever the answer maybe, it will be interesting to note how officials handle this type of situation after this.

I have long been an advocate of keeping animal abusers out of shelters and on more than one occasion I’ve criticized a judge for ordering a defendant convicted of animal abuse to work off community service hours at the local animal shelter. Shelters are low supervision environments where an offender is presented with both a large pool of potential new victims and a very low probability of getting caught… The “logic” of ordering an animal abuser to perform community service in a shelter is as about as sound as the “logic” of putting a child abuser to work in a daycare facility. While perhaps not quite as militant in my stance, by default, I have applied a derivative of this same line of reasoning to any offender—if you can’t be trusted to follow the law, then you can’t be trusted to care for the vulnerable and the voiceless.

However, as life has a way of proving, sometimes there are exceptions to the general rule. For example, when an offender whose crime is unrelated to any form of violent conduct (e.g., contempt of court for failing to pay fines on theft case), the idea of requiring an offender to work at an animal shelter can yield some very good outcomes. In Oregon, inmate-trustees from the Jackson County and Lincoln County jails have been assigned to work in local shelters with what appears to be great success.

While I will always err on the side of caution, these Jackson and Lincoln County programs leave room for recognizing that almost every rule has an exception.

To Learn More

• Read Scott Heiser’s previous article on this subject, “Why Would Anybody Want to Use a Fox to Guard the Henhouse?”
• Read a news story on the success of the Lincoln County, Oregon, program mentioned in this article: “Lincoln County shelter offers second chance to both pets, inmates”

The “Oprah case”

“Dangerous Food,” which was broadcast on April 16, 1996, featured a discussion by Winfrey and her guests of the possibility that beef cattle in the United States were or would become infected with bovine spongiform encephalopathy (BSE), commonly known as “mad cow disease.” Less than one month before the broadcast, British health authorities had concluded that the consumption of animal tissues (especially nervous tissues) contaminated with the pathogenic protein that causes BSE in cattle was responsible for a rash of cases in Britain of a new version of Creuzfeldt-Jakob disease (nvCJD), a fatal degenerative brain disease in humans. During the discussion, Lyman argued that the risk in the United States of a BSE epidemic, and a consequent outbreak of njCJD, was significant, owing to the widespread practice of adding “rendered” animal parts—consisting of the ground-up tissues and bones of cattle, sheep, goats, pigs, birds, and other animals—into cattle feed as a cheap source of protein. According to Lyman,

100,000 cows are fine at night, dead in the morning. The majority of those cows are rounded up, ground up, fed back to other cows. If only one of them had mad cow disease, it has the potential to infect thousands. … We should have [cows] eating grass, not other cows. We’ve not only turned them into carnivores, we’ve turned them into cannibals.

Alarmed, Winfrey asked her audience, “Now, doesn’t that concern you all a little bit right there, hearing that? It has just stopped me cold from eating another burger. I’m stopped.”

In June 1997, the United States Department of Agriculture (USDA), citing concerns over a possible outbreak of BSE in the United States, announced a ban on the use of rendered beef and lamb in feed produced for cattle and sheep. That fact notwithstanding, in December 1997 a group of cattle-industry executives led by Paul Engler, owner of Cactus Feeders, Inc., filed suit in federal district court, alleging that disparaging statements about beef made by Winfrey and Lyman on the show had cost them $10.3 million in lost business. The suit specifically accused Winfrey and Lyman of false disparagement of a perishable food product, common-law business disparagement, defamation, and negligence. Under Texas’s food-disparagement law, a person is liable for “damages and any other appropriate relief” if he disseminates information that states or implies that a perishable food product is not safe for public consumption, provided that the information is false and the person knows or should have known that it is false. The law defines “false” as not based on “reasonable and reliable scientific inquiry, facts, or data.” The law makes no provision for damages or relief for the defendant if the suit filed against him is unsuccessful.

After the jury decided in her favor on February 28, 1998, Winfrey emerged from the courthouse in Amarillo and declared to a national television audience, “Free speech not only lives, it rocks!” Although the outcome was surely a victory for free speech, it was legally not as consequential as most of her audience assumed. At the start of the trial the judge, Mary Lou Robinson, granted the defendants’ motion for dismissal of the plaintiffs’ charges of food disparagement and common-law defamation and negligence, holding that the relevant laws did not even apply. The food-disparagement law in particular did not apply because the plaintiffs’ product, live cattle, was not “perishable”—though the plaintiffs’ attorneys went to great lengths to show that cattle were perishable in a certain metaphorical sense. Winfrey and Lyman were thus tried on the single cause of common-law product defamation, or trade libel, under which a company is liable for damages if it issues disparaging statements about the product of another company with malice—i.e., with knowledge that the statements are false or in reckless disregard of whether the statements are true or false. Because the plaintiffs could not establish, as product-defamation law requires, that both of these conditions had been met, the jury rightly found for Winfrey and Lyman. The plaintiffs later appealed the case to the U.S. Court of Appeals for the Fifth Circuit, which affirmed the ruling. The trial and appeal cost both sides millions of dollars in legal fees.

Because it was not at issue in the case, the Texas food-disparagement law was unaffected by the ruling, though there were later some unsuccessful attempts in the Texas state legislature to repeal it. In this respect the “Oprah case” was not a total loss for the plaintiffs or for the argriculture and food industries generally. Indeed, it was arguably a considerable benefit to them, because it usefully demonstrated to a wide audience that anyone who questioned the safety of a perishable food product in a public forum could face ruinously expensive litigation.

The Alar case and the invention of food-disparagement law

The adoption of food-disparagement laws in 13 states (in chronological order, Louisiana, Idaho, Mississippi, Georgia, Colorado, South Dakota, Texas, Florida, Arizona, Alabama, Oklahoma, Ohio, and North Dakota) in the 1990s was a direct result of a suit filed against the CBS television network for its 1989 broadcast of a documentary report, “A is for Apple,” on the news program 60 Minutes. The report, relying on a study by the National Resources Defense Council (NRDC), asserted that many children in the United States were at risk of developing cancer later in life because a significant proportion of the apples grown in the country were sprayed with daminozide (commonly known by the trade name Alar), a growth regulator that was known to be a potent carcinogen. Children were in greater danger than adults, according to the report, because they consume more food per unit of body weight and because they retain more of the food they eat, among other factors.

The economic impact of the report on Washington apple growers was predictably devasting. In 1991 the growers filed suit in federal district court, charging CBS and the NRDC with product defamation. But the district court judge, while noting that “apples had not received such bad press since Genesis,” granted the defendants’ motion for dismissal because the growers did not provide any evidence to indicate that the allegations in the report were false. In 1995 an appeals court affirmed the district court decision, agreeing that “the growers have failed to raise a genuine issue of material fact as to the falsity of the broadcast.”

The Alar case was a wake-up call to agricultural and food corporations. It made plain that their financial interests could be seriously harmed by criticism of their products by public-interest and consumer advocates. The law of product disparagement provided insufficient protection, because it placed the burden of proof on corporate plaintiffs to show that the defendants’ criticisms were false. What was needed, from the corporations’ point of view, was a new kind of disparagement law under which the burden of proof would lie with defendants, requiring them to prove that their statements were true. Because suits brought under such laws would be much easier for corporations to win, the laws would effectively prevent all but the wealthiest potential critics from speaking up.

Accordingly, in 1992 the American Feed Industry Association (AFIA), a lobbying group for the cattle-feed and pet-food industries, hired a Washington, D.C., law firm to draft a model food-disparagement law, which the AFIA and other industry groups then promoted to state legislators throughout the country. Most of the laws eventually adopted use the verbal formulas contained in the model, including some variant of the provision that a disparaging statement may be deemed false if it is not based on “reasonable and reliable scientific inquiry, facts, or data.”

Constitutional and public-policy issues

In 1992, the Idaho state attorney general issued an assessment of the constitutionality of a proposed food-disparagement law then under consideration in the Idaho state legislature. He noted that the new law departed from established product-disparagement law in at least three other significant respects: (1) the requirement of “malice”—making a false statement with knowledge of its falsity or in reckless disregard of its truth or falsity—was replaced with the much weaker standard of negligence—making a statement that the defendant knew or “should have known” was false; (2) the category of actionable speech was broadened from false statements of fact to false “information,” which potentially encompasses scientific theories and ideas concerning issues of public health and safety; and (3) the requirement that the disparaging statement be “of and concerning” (specifically about) the plaintiff’s product, rather than about a general category of product, such as apples or beef, was dropped. The attorney general concluded that each of these three innovations would probably render the law unconstitutional, and he therefore recommended drastic changes, most of which were adopted in the final law.

Meanwhile, the legislatures of 12 other states, detecting no constitutional flaws, adopted laws essentially like the AFIA model. Indeed, some legislatures introduced constitutionally dubious provisions of their own. These included: granting standing to sue not only to producers of disparaged food but also to any person or commercial entity in “the entire chain from grower to consumer” (Georgia); allowing “disparagement” to apply not only to food products but also to “generally accepted agricultural and management practices” (South Dakota); allowing the plaintiff to collect punitive as well as actual damages or damages three times larger than his actual loss (Ohio); and, uniquely, making food disparagement a criminal rather than a civil offense, requiring food disparagers to be prosecuted by the state (Colorado).

There are other signficant problems with these laws, as many legal and social-policy analysts have pointed out. None of them define the terms “inquiry,” “facts,” and “data” or the terms “reasonable” and “reliable.” It is thus inherently unclear what standard of proof the defendant must meet. In practice, however, plaintiffs tend to interpret these terms in such a way that an allegedly disparaging statement cannot be based on reasonable and reliable scientific evidence unless the preponderance of existing evidence supports it. This interpretation is perverse, because it would count as false any new scientific hypothesis that contradicts an established view. More importantly, in most (if not all) cases to which these laws apply the point of the allegedly disparaging speech is not that the available evidence shows that a food product is unsafe but only that there is enough evidence to indicate that it may be unsafe—and that therefore, in view of the risk involved, some action should be taken. Debates about issues of public health and safety almost always concern questions that do not yet have full and conclusive scientific answers.

Only a few food-disparagement suits have been filed since the adoption of the laws in the 1990s, and none of them has been successful. But this does not mean that the laws are not being used, or that they are not serving their purpose. The mere fact that such laws exist has led many journalists to avoid writing stories on food-safety issues and has discouraged many activists from speaking as forcefully or as publicly as they would like. Smaller publishers have been led to rewrite or omit potentially actionable material from books–as in the case of J. Robert Hatherill’s Eat to Beat Cancer–and to cancel some books altogether–as in the case of Mark Lappe and Britt Bailey’s Against the Grain: Biotechnology and the Corporate Takeover of Your Food–sometimes after receiving threatening letters from corporate attorneys. (Against the Grain was eventually published by Common Courage Press.) Meanwhile, agriculture and food corporations and their lobbyists continue to push for the adoption of food-disparagement laws in states that do not have them and even in states in which they have been rejected.

The danger that these laws pose to free speech, public health and safety, and democracy is clear. They are intended to stifle speech that may harm the financial interests of agriculture and food corporations. They are designed to prevent informed discussion of an issue of great concern and interest to all Americans: the safety of the food they eat. To the extent that these laws succeed they make it impossible for Americans to make meaningful decisions about what policies the government should adopt to ensure that the nation’s food supply is safe. It is worth noting that, had these laws been in force in earlier decades, Upton Sinclair’s The Jungle (1906) and Rachel Carson’s Silent Spring (1962) would never have been published.

Finally, as many potential defendants of food-disparagement suits have pointed out, if these laws are allowed to stand there is no reason to assume that similar laws will not be created to protect other industries—if there can be such a thing as food disparagement, why can’t there also be automobile disparagement, lawn-furniture disparagement, or shoe disparagement? We could be facing a future in which public-interest criticism of the products or practices of a corporation is illegal. That is a grim prospect indeed.

Images: Oprah Winfrey celebrating her legal vicotry in front of the federal courthouse in Amarillo, Texas, 1998 (LM Otero/AP); vacuum-sealed packages of roast beef on a conveyor belt at a meat packing plant in Philadelphia, 2004 (Jacqueline Larma/AP).

To Learn More

• Visit FoodSpeak, a project of the Center for Science in the Public Interest.
• Visit Mad Cowboy, the web site of Howard Lyman.