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NATIONAL NUTRITIONAL FOODS ASSN. v. WHELAN

June 25, 1980

NATIONAL NUTRITIONAL FOODS ASSOCIATION; DAVID T. AJAY, d/b/a DAVE'S DIET AND NUTRITION FOODS; SID CAMMY, d/b/a THE DIET SHOP; and MAX HUBERMAN, d/b/a NATURAL HEALTH FOODS, Plaintiffs, against ELIZABETH M. WHELAN, Sc.D., and FREDRICK J. STARE, M.D., Defendants.


The opinion of the court was delivered by: SOFAER

This is an action for libel, conspiracy and prima facie tort brought against a nutritionist, Elizabeth M. Whelan, and a physician specializing in nutrition, Fredrick J. Stare, by National Nutritional Foods Association ("NNFA"), a trade association of retailers, manufacturers and distributors in the health food industry and three individual members of the Association, all of whom are in the retail health food business. *fn1" Jurisdiction is based upon diversity of citizenship. 28 U.S.C. ┬ž 1332.

Plaintiffs claim they have been libeled, defamed, and commercially injured by a conspiracy dedicated to destroying or injuring the health-food industry, and in particular by publications written by the two named defendants. Defendants have moved for summary judgment and dismissal pursuant to Fed.R.Civ.P. 12(b)(6) and 56. For the reasons stated below, defendants' motion is granted.

I. Allegations of the Parties

 A. The Complaint

 Plaintiffs allege in Count I that "the defendants have maliciously engaged in a combination and conspiracy with each other, with the American Council on Science and Health . . ., and individual members thereof, with columnist Ann Landers, and with nutritionists, columnists and other food industry figures, to defame, injure, disparage, damage and destroy the business of members of plaintiff NNFA and plaintiffs" Ajay, Cammy and Huberman. (Complaint P 12) Plaintiffs claim that in furtherance of this conspiracy defendants took the following actions:

 (1) participated in forming the American Council on Science and Health "as a vehicle for disparaging the health food industry and deprecating natural foods advocated (and sold) by plaintiffs;" (Id. P 13(a))

 (2) "acting individually and in concert" with the other conspirators, "disseminated false and defamatory remarks with respect to plaintiffs and the health food industry," including press releases, articles, and books "falsely and maliciously deriding and debasing the value of health food products," and their sellers. The false statements allegedly advanced by defendants and their co-conspirators are that health food products and stores are " "rip-offs,' "quackery' and a threat to the pocketbook of the consumer;" (Id. PP 13(b), (c), (d))

 (3) "maliciously advised members of the consumer public to cease and avoid the purchase of health food products and natural foods as distributed in health food stores such as those of plaintiffs." In particular, plaintiffs allege, defendants authored three disparaging publications: a book entitled "Panic in the Pantry Food Facts, Fads and Fallacies" ; an article entitled "The Big Health Rip-Offs," appearing in the January 1978 issue of Harper's Bazaar ; and a newspaper column in the San Jose News under the heading "Food and Your Health" and "Natural Food Vitamins Called Rip-Offs." (Id. PP 13(e), (f), (g), (h))

 These activities, plaintiffs claim, have discredited "the reputation, prestige and goodwill of the plaintiffs," and have injured their businesses, reputations, and trade names. (Id. PP 14(a), (b)) Despite the numerous references in Count I to defamation, plaintiffs' intent there is to plead a "prima facie tort." Pltfs' Mem., p. 4. They claim injury and damages due to this tort "in an amount presently unascertainable, but which is at least $ 100,000." (Complaint P 28) Count II realleges the conspiracy to commit prima facie tort, and seeks to enjoin defendants from further engaging in it.

 Plaintiffs also claim libel or defamation. Count III charges that the article appearing in Harper's Bazaar was "false and knowingly spiteful and maliciously written and published" by the defendants. (P 21) The article in general laments the fact that "advocates of health foods have managed to convince a significant portion of the population that organically grown food is more nutritious and safer than "regular' food. . . ." The specific statements in this article, said to be actionable, are (1) the term "rip-off" (defendants call the health food fad a nutritional "rip-off," not only of the pocket book but of the public's health); (2) the term "quack" or "quackery" (defendants refer to "vitamin quacks" and "health quackery"); and (3) the claim that the products are sold at great markups (e.g., "The only thing unusually healthy about "organic' foods is the markup or their price . . ."). (Id. P 20) These statements, plaintiffs assert, "were intended to be understood and were understood by the reading public, as relating and referring to plaintiffs and their businesses of selling health food products." (Id. P 22) Defendants allegedly knew these statements were false when made or failed to take proper steps to ascertain their truthfulness, and instead published them with reckless disregard for their truthfulness. (Id. P 26)

 Count IV claims that defendants republished the false and defamatory material alleged in Count III in the San Jose News, San Jose, California, on July 5, 1978. The gist of the alleged defamations is the same in both articles, though the later piece uses slightly different language, and refers to "health foods, megavitamins and laetrile" as "three nutrition-related health rip-offs," on the "list of current-day health quackery. . . ." (Id. P 30) The same allegations as in Count III are made concerning defendants' intent ("spiteful and malicious"), knowledge (knowing the statements to be false or recklessly disregarding falsity), and purpose (to lead the reading public to understand that plaintiffs were guilty of deceit and overcharging). Both counts also claim damages "in a sum presently unascertainable but which is at least $ 100,000." Finally, Count V seeks "One Million Dollars" in punitive damages, charging defendants with acting in a "malicious, wilful and grossly irresponsible" manner. (Id. PP 39-40)

 B. Defendants' Contentions

 Defendants are prominent nutritionists. Dr. Whelan is a research associate with the Department of Nutrition of the Harvard School of Public Health and executive director of the American Council on Science and Health. She is author or co-author of several books and numerous articles. Whelan Aff., p. 2. Dr. Stare is a nutritionist, biochemist and physician. He founded the Department of Nutrition at the Harvard School of Public Health, and was its chairman from 1942-1976. He continues at Harvard as a Professor of Nutrition, and is a member of the Board of Directors and Board of Advisors of the American Council on Science and Health. He, too, has written several books and articles, including Panic in the Pantry with Dr. Whelan as co-author. Stare Aff., p. 2.

 Defendants admit and adhere to the statements they made in the publications quoted by plaintiffs. They claim their statements were and remain true. Furthermore, they note that their written statements are essentially the same as those made over the last few years by numerous other commentators, including government officials, on an issue of public concern. They also deny any conspiracy or intent to defame the individual plaintiffs, pointing out that none of the publications relied upon by plaintiffs refers to any of the plaintiffs individually. Panic in the Pantry, they claim, is the outgrowth of considerable professional knowledge and research, received the approval of noted authorities, and contains no statements defendants believed to be untrue. Both the Harper's Bazaar piece and the San Jose News article also were allegedly researched with care, and contain only ...


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