Court Refuses To Reinstate Alar Suit 9th Circuit Court Of Appeals Decision Ends Six-Year Battle

Six years after “60 Minutes” called Alar “the most potent cancer-causing agent in our food supply,” a federal appeals court has ended Washington apple growers legal claims against the CBS TV network.

By a 3-0 decision, the 9th U.S. Circuit Court of Appeals refused Monday to reinstate a suit by Washington growers against CBS Inc. that was tossed out two years ago by U.S. District Court Judge William Fremming Nielsen in Spokane.

Growers said they will not appeal to the U.S. Supreme Court.

The decision ends a bitter battle that wound through three courts and six judges over five years, running up a $1 million legal tab.

The “60 Minutes” broadcast in February 1989 said Alar, a brand name for a growth regulator sprayed on apples, could cause cancer in children. The report was largely based on a study by the Natural Resources Defense Council, an environmental group.

Apple sales plummeted soon after the broadcast, costing the Washington apple industry an estimated $133 million, according to Washington State University economists.

In late 1990, 20 orchardists from the Columbia River Basin sued CBS, the NRDC, KREM-TV in Spokane and three other organizations for product disparagement, a type of libel. All but CBS were dropped from the case in 1992.

The class-action suit represented about 4,000 growers who produced more than half the nation’s apples each year. Several claimed financial harm or bankruptcy because of the CBS report.

The appeals court decision killed any chance for growers to get the case before a jury, which they thought would be more sympathetic to claims of damage than a judge.

But the decision, one grower said, does not redeem CBS’ tarnished reputation among farmers and 4 million members of the American Farm Bureau Federation, which raised money for the growers’ legal battle.

“We knew it was a lie, they (CBS) knew it was a lie and we ought to be able to collect,” said Bob Brody, a Brewster, Wash., orchardist and spokesman for the growers in the suit. “They made a whole lot of money off this. Bottom line for them is the buck.”

Seattle attorneys representing CBS in the case were not available for comment.

The court of appeals said growers failed to produce evidence that the CBS statements about Alar were false.

Prior to the CBS broadcast, the court said, the U.S. Environmental Protection Agency had announced that it had begun proceedings to remove Alar from the market because of preliminary findings of cancer risks based on laboratory tests on animals.

The court said the growers offered no evidence to disprove the NRDC’s findings that the chemical was more harmful to children because they consume more apple products per unit of body weight than adults.

The court also rejected the growers’ argument that the program had conveyed an implicit false message. Libel claims must be based on specific false statements, the court said.

Brody said growers had provided testimony from top scientists refuting statements made by CBS and the NRDC study.

“We had some dog-gone good arguments,” Brody said. “Alar is carcinogenic if you eat enough of it, but you simply can’t eat enough. Alar is totally harmless. It’s the dosage that counts.”

, DataTimes