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Calling Beef ‘Pink Slime’ Isn’t Libel, ABC Insists

(CN) - The ABC television network asked a federal judge to toss a $1.2 billion defamation lawsuit filed by a meat producer implicated in "pink slime" news stories.

Using the words "pink slime" to describe the "lean finely textured beef" product is merely "rhetorical hyperbole" and is not actionable, according to a memorandum in support a motion to dismiss filed Wednesday.

In a September 2012 complaint, filed in Elk Point, S.D., Beef Products Inc., BPI Technology Inc. and Freezing Machines Inc. claimed that it had been defamed by ABC, ABC News, Diane Sawyer and others.

Repeatedly describing "lean finely textured beef," or LFTB, as "pink slime" essentially renamed the product, according to the complaint, which was removed from Union County Court to the federal court in Sioux Falls.

ABC allegedly misled viewers into thinking the product was not really meat, and that it was filler meant to pump up the volume of meat, the LFTB producers said.

"Defendants' campaign against BPI and LFTB was unparalleled in terms of its duration, its scope of false statements, and the size of the audience it reached through the ABC broadcasts and online reports," the complaint states. "Between March 7 and April 3, 2012, ABC aired 11 broadcasts attacking BPI and LFTB. Defendants supplemented the broadcasts with 14 online reports and numerous social media postings. Over these 28 days, Defendants knowingly or recklessly made nearly 200 false, defamatory, and disparaging statements regarding BPI and LFTB."

But ABC says the complaint fails to state a claim for disparagement under common law because of pre-emption by the South Dakota Agricultural Food Products Disparagement Act. News reports using the words "pink slime" are also not actionable under common law standards, the defendants say.

"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," according to the 62-page memoradum. "And the ABC News reports cannot reasonably be understood to imply that LFTB is 'not safe for public consumption' or 'not nutritious.' The reports repeatedly state that LFTB is 'safe to eat,' though 'not as nutritious as ground beef' - a viewpoint BPI does not challenge."

Filing suit directly challenges the rights of journalists to explore matters of "obvious public interest," ABC says.

"The complaint also inhibits others who might address these subjects in a public forum," its memorandum states. "The sheer volume of BPI's 257-page pleading only compounds the threat and should not shield the claims from the scrutiny that they demand."

Ronald Parsons with Johnson, Heidepriem & Abdallah represents the defendants in Sioux Falls with help from the Washington, D.C., firm of Williams & Connolly.

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