Maintenance Phase

Oprah v. Beef Part 2: Apocalypse Cow

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[Maintenance Phase theme] 

Aubrey: Hi, everybody. And welcome to Maintenance Phase, where you get a lawsuit, you get a lawsuit.

Michael: [laughs] 

Aubrey: Everybody gets a lawsuit. [laughs] 

Michael: That's very good, Aubrey. Thank you also for not doing the voice. 

Aubrey: Oh, you're welcome.

Michael: Is it good for the long-term choice? 

Aubrey: You are Michael Hobbes. 

Michael: You are Aubrey Gordon. 

Aubrey: And today, Michael-

Michael: Aubrey.

Aubrey: -we are taking up the thrilling conclusion of our story about Oprah v. The Cattlemen's Association. Is that right? 

Michael: Oprah versus beef? Yes. 

Aubrey: So, where are we diving in? 

Michael: Well, why don't you do a little previously on, Aubrey, because it hasn't been that long for us, but for listeners, it's been two weeks. 

Aubrey: So, when last we left Oprah, she had aired an episode about mad cow disease, and she had said things like, "This has freaked me out enough that I'm not going to eat another burger again." These cattle ranchers argued that this led to a massive hit in their sales. 

Michael: Yes.

Aubrey: So, they sued her under Texas Ag-Gag law, 

Michael: Sirloin slander.

Aubrey: she and her team decided that it was important to take it seriously, so that she didn't get hit with wave after wave of lawsuit. As part of taking it seriously, she hired a jury consultant named Dr. Phil. 

Michael: Mr. Dr. Reverend Phil. Yes. 

Aubrey: Great. The third. 

Michael: So, a little bit of timeline. March of 1996 is when Britain reports the first human cases of mad cow disease. April of 1996 is when Oprah does her fateful dangerous foods episode. May of 1996 is when the cattlemen sue her for the baffling sum of $12 million. Throughout the course of 1996, they're doing-- You know it was like pretrial stuff. They're like, "The motion to do this and the motion to do that," and they're arguing over technical stuff. So, it's not until January of 1998 that the trial actually starts. 

Aubrey: It's wild how Goddamn long- 

Michael: It's weird. I know. 

Aubrey: -trials and the legal system take. I absolutely remember this from organizing days when people would be like, "We just need to take it to the Supreme Court, and they'll overturn the whole thing." And I'm like, "Cool. Hang out for, like, a decade."

Michael: I actually remember this growing up. Do you remember growing up that Oprah actually filmed her show in Texas for six weeks? 

Aubrey: No, I don't remember this. 

Michael: So, this is one of the weirdest footnotes to the story, that Oprah was under contract to produce a certain number of shows per year, so she couldn't just take time off and go beyond trial in Texas. So, they rented out the largest theater in Amarillo, Texas, and did her show there. So, every day for six weeks, she would be in trial, like, in a courtroom all day. And then at night, she would go straight to theater and film an episode of Oprah. 

Aubrey: God. 

Michael: It was really weird, because the judge imposed a gag order. Oprah was not allowed to say anything even tangentially related to any of the issues that came up in the trial. She constantly made jokes about this on TV. She's like, "You're going to tell a talk show host not to say anything." But this became a running joke. So, there's these genuinely pretty funny and charming clips of her interviewing celebrities. There's one where she's talking to Patrick Swayze, and he's telling some story, and he's like, "Da, da, da, I was driving around. I ate a hamburger." And then Oprah leans into the microphone and she's like, "I have no opinion about hamburgers. [Aubrey laughs] I have none. No thoughts in my brain about beef." 

Aubrey: Sure. This is the Jay Leno, Conan O'Brien of its day, right? 

Michael: Yeah.

Aubrey: Like, "No one's saying anything, but everything's about it."

Michael: Right.

Aubrey: Also, I just looked up the population of Amarillo, Texas in 1998 was 170,000 people. 

Michael: Yeah, it's a very small city. 

Aubrey: It's a small city, and Oprah is in it in 1998 at the height of her powers. 

Michael: It's also very ironic, because the lawyers for the cattlemen deliberately chose Amarillo as a venue to fuck over Oprah, because this is a town who's almost their entire economy depends on beef. The largest employer is a slaughterhouse. 25% of the country's cattle is produced in this region, and Amarillo is like a hub for the entire industry. So, the population of people there and the jury pool is all super pro beef. So, it's actually pretty fucked up. But it also speaks to Oprah's power, because she's so popular and her popularity transcends all kinds of lines of race, and ethnicity, and age, and class that she goes down there and pretty soon there's a line around the block starting at 04:00 AM to get tickets to her show. She becomes this really celebrated figure. 

So, apparently, there's this dueling battle of bumper stickers that people will have bumper stickers on their car that are like, "Amarillo hearts Oprah." And then people are also putting bumper stickers on their car that say, "The only mad cow in Amarillo is Oprah." 

Aubrey: Holy shit. 

Michael: Ooh, getting into some deeper topics there, calling a black woman a mad cow. 

Aubrey: Yeah, good. 

Michael: Doesn't look great.

Aubrey: God. 

Michael: It does appear to be the case that overwhelmingly, public opinion eventually swung toward Oprah over the course of the six weeks. 

Aubrey: This is like when a celebrity shows up in Portland, Oregon, and everyone loses their minds. 

Michael: It's like, when people from Seattle pretend that Tom Skerritt is a celebrity. 

Aubrey: [laughs] 

Michael: "Tom Skerritt lives here." No one knows who that is, if you're not in Seattle. It’s fine. 

Aubrey: We used to have the Everclear guy?

Michael: Yeah. [laughs] 

Aubrey: [laughs] 

Michael: I also want to read some of the, either great or terrible headlines coming out of this trial depending on your perspective that this as we discussed last episode, this is the height of bad dad puns. So, there's of course, cattlemen have cow over Oprah show. Classic. 

Aubrey: Is there a move over? 

Michael: No, this is the one I wanted to do. 

Aubrey: Okay.

Michael: This is the one I feel like they're leaving it on the table. 

Aubrey: Really? You got to have a move one. 

Michael: Cattlemen have bad mootivations in suing to Oprah.

Aubrey: Love it. 

Michael: There's also Oprah, cattlemen lock horns.

Aubrey: Good.

Michael: Texas jury hears meaty libel case.

Aubrey: Uh-huh.

Michael: I feel like maybe the best one I saw is it just says a lot at steak, and it's S-T-E-A-K, which is pretty good. 

Aubrey: I enjoyed the steak. 

Michael: There's an editorial in the Tennessean that says, "Beef against Oprah is a case of bologna," which I don't know.

Aubrey: [laughs] 

Michael: Bologna isn't made of beef, I don't think. So, I don't know if it works literally.

Aubrey: Who knows what bologna is made of.

Michael: Then the best academic article about this I saw was called Apocalypse Cow. 

Aubrey: Yeah. [laughs] 

Michael: Also, quite good. 

Aubrey: God, that would be great anywhere-

Michael: I know.

Aubrey: -but especially in an academic setting. 

Michael: I love it when academics are like, "Fuck it, I'm going in."

Aubrey: [laughs] 

Michael: Then I am also going to send you one of the richest fucking texts I've ever seen. This is from the Kitty Kelley, Biography of Oprah. "If it wasn't you, we wouldn't be talking about this, but I think that this is going to make you melt down." 

Aubrey: You're like, maybe the only person who when you say, "I'm going to send you something and it's going to make you melt down." I'm like, "Whoa."

Michael: Yeah, like, "Whoo, going in."

Aubrey: "Let's go." Okay. The female judge refused to allow women to wear pants in her courtroom. So, Oprah wore a skirt every day. 

Michael: 1996. It's not 1951. It's 1996. 

Aubrey: "I love the fact that no cameras were allowed in the courtroom," she said. "Those artist renderings made me look skinny."

Michael: mm-hmm.

Aubrey: Even with her trainer and chef in tow, she still battled her weight, at least for the first few days. Then she said, she gave herself over to "Jesus and the comfort of pie." That's the title of my memoir, by the way. 

Michael: [chuckles] 

Aubrey: [giggles] She gained 22 pounds during the six-week trial. "My trainer, Bob Green, was very upset with me. He said, "It's like you gained it and you're very proud of it." I'd say, "Yes, I ate pie. I ate pie. And we had macaroni and cheese with seven different cheeses." Her codefendant, Howard Lyman, a cattle rancher turned vegetarian, was not allowed to mention weight or food to her. "Her attorneys told me I couldn't talk to her about her diet during the trial. They felt she was under enough pressure."

Michael: What are your thoughts? 

Aubrey: What kind of fucking gremlin-

Michael: I know.

Aubrey: -is like, "Oh, Oprah Winfrey, here's my chance to tell this lady about diets"? 

Michael: It's very clear from what Oprah says about this later that, like, this is a huge source of anxiety for her. This is the first time she had been sued in this way. I think she was waking up to the fact of how big of a deal she was, and the fact that she was now going to become a target for these kinds of lawsuits. It appears that she was very nervous about losing. Because she's a public figure and a woman and a black woman, she has this extra layer of anxiety on top of it of like, "Oh, my God, what if I gain weight?" 

Aubrey: Yeah, totally. 

Michael: Which is just such a fucking weird thing to throw in there. And also, the fact that she did gain weight and it ends up in her fucking biography. 

Aubrey: Yeah. It's just wild to me how much that has become, like, sometimes by her own bringing it up, sometimes not. How much that has become just a baked in part of her story that people are currently pretty incapable of talking about Oprah without talking about her body. 

Michael: Yeah. 

Aubrey: I feel similarly about the lawsuit as I do about the body stuff, which is essentially like, "No matter how much of either of those things you get, it's never not going to be stressful."

Michael: Oh, yeah.

Aubrey: The idea that on top of all of that stress, you also need to be extremely assiduous about what you eat is like, "Jesus Christ."

Michael: Although, I'm glad that she was able to have pie and let go of this for a little while. It seems like she deserves it. 

Aubrey: That mac and cheese sounds good. 

Michael: Normalize it. Normalize pie and seven cheeses. 

Aubrey: Yeah. 

Michael: So, the trial starts in January of 1998. They are suing her under the Texas Perishable Foods Act. This is one of these veggie libel laws that passes in this wave of legislation that happens in the early 1990s. It's the first time this law has ever been used. So, it's a test case for this Texas veggie libel law, and a test case for these laws writ large, because they've been on the books for five years now and they've never been used. So, the country's legal establishment is watching this to see whether it works and whether these laws could potentially be overturned. 

Aubrey: It seems like the highest stakes possible test litigation- 

Michael: Oh, yeah. 

Aubrey: -if you're going to sue Oprah. 

Michael: So, to find Oprah guilty, the lawyers have to prove that Oprah and Howard-- This is in the law. They have to have stated or implied that a perishable food product was not safe for consumption for the public. So, they cite Oprah's comment that, "This has put me off eating another burger." One of the claims they're contesting is just four words long, "Feeding cows to cows." They also focus on Howard's comparison of the US to the UK. This is from the eventual appeal that is filed years later. It says, "Branding Lyman an extremist, the cattlemen cite two of his inflammatory statements during the April 16th Oprah Winfrey Show. First, the cattlemen challenge as patently false, Lyman's assertion that mad cow disease could make AIDS look like the common cold. Second, they maintain that Lyman falsely accused the United States of treating mad cow as a public relations issue as Great Britain did, and failing to take any substantial measures to prevent a mad cow outbreak in this country." 

They're also suing over the editing. This is actually really interesting. They're saying that the show was deceptively edited, because as we talked about last episode, they did in fact have a somewhat independent, USDA genuine expert on mad cow disease and they cut his appearance from 8 minutes down to 37 seconds. As an audio editor, [Aubrey laughs] I actually agree with the concept that you could very easily libel somebody with editing, which is so fucking easy. 

Aubrey: Listen, Michael, you do it to me every show. 

Michael: [laughs] No.

Aubrey: [laughs] 

Michael: Well, we had. I don't know if you remember this. Very, very early in the show, we had a rough cut. We were taking apart pieces of the episode and putting it back together. There was a point where there were some artifacts of the previous edit. I said at one point, I was like, "Well, that is why so many kids die in road accidents in America." And then you cackled for 2 minutes, which, it was like I had cut out something else there, like, a joke, but because I had children dying and then you laughing, it was like-

Michael and Aubrey: "Wow."

Michael: -"Aubrey's a monster." 

Aubrey: Michael, I'm so glad you bring this up. We're now back in Bachelor land. This is what The Bachelor does all the damn time. You got a villain edit in your season, but they want to bring you back as The Bachelor. Congratulations. You're going on Bachelor in Paradise. You're about to get the best edit possible. 

Michael: Yeah.

Aubrey: Nick Viall.

Michael: This is why I'm so nervous about people having para social relationships with us, because I keep wanting to stress that I'm a normal person who's like a dick sometimes, and I don't want you to experience that as a betrayal. 

Aubrey: Yeah, that's right. 

Michael: [laughs] No, Mike has bad takes and is sometimes a prick. 

Aubrey: Podcasters, they're just like us. 

Michael: Exactly. 

Aubrey: [laughs] 

Michael: So, the lawsuit is mostly over these false claims, and it really rests on this claim that Howard Lyman made that, "America is treating mad cow disease like Britain. It's basically treating it like a public relations issue rather than like a public health issue." So, for you and I to adjudicate whether this claim has any merit, we need to talk for the next two hours about the history of mad cow disease. 

Aubrey: Delightful. Can't wait. Rotting brains. Let's go. 

Michael: Speaking of which, what do you remember about mad cow, as a disease, as a condition from last week? 

Aubrey: What I remember is feeling very upset by the effects of it. 

Michael: That's very upsetting. Subjectively upsetting. 

Aubrey: It's really upsetting. It essentially creates holes in your brain. Am I remembering that, right? 

Michael: Yeah, the actual name of it is bovine spongiform encephalopathy. 

Aubrey: Spongiform. 

Michael: Yeah. And that's because your brain looks like a fucking sponge. It's disgusting. 

Aubrey: Yeah, I understand. 

Michael: It's very disgusting.

Aubrey: That's a very effective name-

Michael: Very gross.

Aubrey: -in terms of conveying what happens, and that it's like degenerative and pretty rapidly degenerative. Is that right? 

Michael: Yeah. So, it lives in your body for a very long incubation period of years, and then you're dead within a year.

Aubrey: Yeah, that seems horrible. 

Michael: So, the weird thing about this condition is that it takes place in almost all mammal species.

Aubrey: Oh.

Michael: So, you can find it in minks and in elks, it's called chronic wasting disease. In sheep, it's called scrapie, which is a great disease name. I like diseases that sound like diseases. 

Aubrey: That sounds like Cropsey. 

Michael: Yeah. 

Aubrey: You know what I mean? That sounds like an urban legend bad guy. 

Michael: In humans, it's called Creutzfeldt-Jakob disease. There are these little things in your nerve cells, mostly in your brain and your spine called prions. We don't really know what they do. The current theory, apparently, is that they help your brain communicate with itself and communicate with your nervous system, but they're all over the place and they propagate themselves by folding. They're constantly folding into these three-dimensional shapes. Every once in a while, this is extremely rare, they get an error message, like, a little 404 and they fuck up. Then they fold in on themselves, and capture the little error message, and start repeating the error message. 

Aubrey: Holy shit.

Michael: The traditional version of it is called spontaneous Creutzfeldt-Jakob disease. It just fucking happens in your brain, and then it starts propagating itself, and then you start to get these awful symptoms, which are very similar to dementia at first. And so, it mostly happens in older people. The median age of onset is 66. The bad news is that, there's no way of testing for it before you get symptoms, and there's no treatment for it. But the good news is that, it's very difficult to spread. So, it's not airborne, it doesn't come out in your poo or your pee or any of your fluids. Once one person gets it, they just get it spontaneously and then they die. 

Aubrey: Jesus. Oh, God.

Michael: There's a couple instances of cannibal tribes getting it where you can spread it from one person to the other, if you're eating someone else's brain. But again, it's fairly rare behavior in mammals to eat an entire carcass of another thing. So, luckily, it can't really become a pandemic. It's just like something unbelievably unfortunate that happens to an individual, basically.

Aubrey: Yeah. Good Lord.

Michael: But what is important about the mad cow outbreak of 1996, specifically, is that, it had never been seen in cows before. So, we knew that it was in sheep, we also knew that humans cannot get it from sheep. Humans can eat the meat. Humans don't eat a lot of sheep brains, but apparently, even if you do, humans don't get it from sheep and other animals don't get it from sheep. 

Aubrey: Interesting. 

Michael: So, the first case that is documented in a cow is in 1986 in the UK. This cow was acting really weird. Cows haven't really done this before. Cows can get rabies, apparently, but rabies has very specific symptoms and a farmer is like, "Oh, this doesn't really seem like rabies." Eventually, somebody tests the brain of the cow after it dies and is like, "Oh, this is spongy as fuck. I think we have a new thing on our hands." And then after they identify the first couple of cases, they start testing for it more widely, and it's just galloping throughout the cattle industry. So, by the end of 1988, there's 95 confirmed cases on 80 farms. By 1989, there's 2,200 cases. By 1990, there's 10,000 cases. And by 1991, there's 24,000 cases. 

Aubrey: Good God. 

Michael: There are many, many, many things written about the botched UK government response to the mad cow epidemic. I read three books about this. I read the parliamentary inquiry that is eventually published about every single step along the way that they fucked up. So, the first thing that the British government fucked up in responding to this is, they realized what they had on their hands in March of 1987, but they didn't announce it until May. So, this was spreading within the cow population. They didn't tell farmers. They didn't tell people that this was happening, basically.

Aubrey: Yeah. That stuff is always so tricky, right? You don't want people to panic, but also, withholding information seems like a real bad practice. 

Michael: So, fairly early, like, almost immediately, the UK government figures out that this has to be spreading through cows eating cow brains. That's the only way we know that animals can get this is eating their own species brains, like, spinal cords and shit. And so, they look around the cattle industry and they're like, "Oh, yeah, it's a fairly common practice for cattle to be ground up and turned into this bone meal protein stuff that they give other cows." So, they know relatively quickly, like, how this is spreading. So, it's not until June of 1988, nearly two years after they find the first case that they ban the practice of feeding bone meal to cows. 

This is so baffling to me. They give them a grace period. So, they announce it in June, but they're like, "Oh, you don't have to implement it until five weeks later in July." But this is poisonous, like, they're feeding poisonous food to other cows. 

Aubrey: It feels a little bit like the time when very early on in the COVID-19 pandemic, when people are like, "Oh, N95 masks don't even work."

Michael: Yeah. 

Aubrey: It was just so that there were enough for health care providers versus being like-

Michael: I know.

Aubrey: -"Hey, it's most important that the people who are exposed to this the most have the protection that they need. So, we're putting them over here." This feels like it's in the same neighborhood of like, "Boy, I see how you got here, but reorganize your principles here. Reorganize your priorities. This is not the way to do it."

Michael: There's also a weird naivete about how farmers are going to react to this. So, they basically, in 1988, tell farmers like, "You can't use this stuff anymore. It's poison. Don't feed it to your cows anymore." But they don't give them any compensation. 

Aubrey: What? 

Michael: So, the farmers are like, "Well, I've spent tens of thousands of pounds on food." Cows need a lot of food. This is like a fairly sizable industry, this protein meal that they're making. And it's like, "Oh, yeah, all of that is worthless. Bye,"

Aubrey: Yeah. And famously a pretty low margin business for farmers and ranchers, they're not exactly making bank. 

Michael: It also just totally destroyed trust between the government and the farmers, because the farmers were like, "Well, fuck you. You're just telling me not to use this stuff and you're not giving me any compensation. It feels really insulting." So, a lot of the farmers just kept using it until their supplies were gone. This is another super-duper botched government response thing. The UK government didn't ban exports- 

Aubrey: What? 

Michael: -of the bone meal. So, this is another thing that they're selling it to French farmers, Swiss farmers, Belgian farmers. This is part of the industry. So, all of the cases of mad cow that we get in Europe in the early years of this are from French cows eating British bone meals. 

Aubrey: Oh, interesting. 

Michael: They also fucked up the compensation in telling farmers to destroy their herds as well. So, the government bans all this poisonous food. They also tell farmers that they have to kill any cows that have symptoms of mad cow. But they have this whole compensation scheme, where any cow that you kill, a normal cow, they pay you 100% of the value of the cow. However, if the cow has mad cow disease, they only pay you 50% of the value of the cow. 

Aubrey: What? 

Michael: The logic, I guess, is like, "Well, it has mad cows, so it's worth less. So, we shouldn't be paying as much." But the problem is, as soon as farmers start to see symptoms in their cows of mad cow disease, they kill the cow and grind it up and put it in the food. [laughs] 

Aubrey: Right.

Michael: They slaughter it, they sell it, they get rid of it because it's about to lose half of its fucking value. 

Aubrey: I remember growing up. My dad's a pilot, and he would talk about how if you had a mental health diagnosis on the books, you would be grounded as a pilot. You couldn't fly. 

Michael: Oh, yeah. So, you just don't get diagnosed.

Aubrey: Right. Which just meant there were like a bunch of people with untreated and undiagnosed mental illnesses, and it just disincentivized a generation or more of pilots from seeking mental health care that they may have really needed. 

Michael: Yeah, it's super predictable. This is really 101 stuff. 

Aubrey: Yeah.

Michael: The one non-botched government response that they did is they also assign researchers to find out how this started. So, there's actually a fairly interesting mystery that they have to figure out. They know that mad cow disease is spreading through this practice of grinding up cows and feeding it to other cows. Cows eat cow brains. That's how they get mad cow, right? They know that's happening. However, this practice is very widespread. Like, America does it, every country in Europe does it. This is a pretty well entrenched part of the cattle industry by this point. And in Britain, they've been doing this since the 1920s. This is actually something that [chuckles] Oprah is reacting to and the rest of the public is reacting to. He's like, "Oh, we're doing this regularly?" 

Aubrey: Yeah.

Michael: The whole cattle industry is like, "Yeah, you don't want to think about the conditions under which your beef is produced. "Yeah, there's a lot of waste products when you kill a cow, and we're going to try to do something with those waste products." So, it's like, "Okay, well, then why is mad cow happening in Britain and why is it happening now?" So, this is actually pretty interesting. They manage to triangulate the source of the outbreak based on all these incubation periods, and when the cows are getting it, where the cows are getting it. They trace it back to the winter of 1981 to 1982. Something changed in that winter to start spreading mad cow throughout the cow population. So, there's a couple different factors that appear to have led to this. 

The first is the increasing use of this bone meal protein stuff that basically cows need a lot of protein to grow up and get big muscles. This is just like human beings, we all need protein. This is one of the cheap ways to produce protein, is grind up the meal and feed it to cows. And so, there's a weird thing that the price of soybeans and other "natural forms of protein" spiked that winter. So, in the winter of 1981, the percentage of cow feed that was this bone meal went from 1% to 5%, which was the highest in Europe. No other country was using that much bone meal. There was also a change in the way that they create bone meal. So, I don't know, if this is a trigger warning, but if you're eating right now, stop eating. This is like, "Oh, this is so fucking gross." 

Aubrey: Listen, if you've been eating beef in particular for any of this,- 

Michael: Yeah. Maybe hold off. 

Aubrey: -maybe finish your lunch and then come back to us in a couple of hours. 

Michael: This is so fucking gross, Aubrey, but we have to talk about it. So, the way that this bone meal protein stuff works is they basically take cow carcasses, and oftentimes, they'll throw in other animals too, like, other farm animals that are around. They grind them all up into this kind of slop. And so, there's all these industrial processes to separate the fat in that slop from the protein. What's super weird is the fat part is actually very valuable. This is like beef tallow, and it's an industrial additive that they use it in cosmetics. They use it in printing money, like, it's part of plastics. 

Aubrey: I believe famously, it was what gave McDonald's fries their flavor for years and years and years, right?

Michael: This is a very refined industrial process to separate out the constituent parts of this gross animal slop. As the industry was getting bigger and consolidating, especially in the 1970s in Britain, they switched from creating this bone meal in batches, like, you do a bunch of tons of it at once to doing it continuously. So, they have a conveyor belt that does it just all the time. As part of that process, they weren't heating the bone meal up as high. It used to be that they were heating it to 220 degrees, and that dropped to 180 degrees or something like that. They just weren't getting it up to as high temperatures and keeping it at those high temperatures for as long, when they switched to this new process. 

Aubrey: uh-huh.

Michael: There was also a really interesting change in processing that, because tallow is so much more valuable than this protein shit, they would use chemical solvents. So, after they heated it up, they would blast it with these weird chemicals to dissolve the fat and then they could reconstitute it through other chemical processes later. But the industry started increasingly relying on that in the 1970s, and then there were some really grizzly fires and explosions at these rendering plants, because the solvents that they were using were extremely dangerous. 

Aubrey: Boy oh boy.

Michael: So, as an occupational health and safety thing, they phased out these solvents. 

Aubrey: I will say, I'm glad to hear that part. I feel generally wary of conversations about the gross nature of food production, not because those aren't things we should talk about, but because it so quickly tips into like, "That bread is made out of the same thing as yoga mats are made out of them." 

Michael: Yeah.

Aubrey: Sort of sensationalized claims that are designed to squick people out and make them think that their food is dangerous, when water is a thing that's used in making bread and yoga mats. There are plenty of things that go in both categories. But from an occupational safety standpoint, that feels like a place where we are generally asleep at the wheel as consumers. There's very little discussion of, "What is the safety of farm workers picking your vegetables and fruits? What is the safety level of folks who are working on this process?" So, I'm very glad to hear that the occupational safety part wins the day. 

Michael: It's a really weird, like, perfect storm of, the price of international fish meal production went up, and they reduced the heat by a little bit in these processes. The protein that they were feeding the cows went from 5% fat to 12% fat. 

Aubrey: Ooh.

Michael: None of these things on their own seem like that big of a deal, right? 

Aubrey: Yeah.

Michael: They're little tweaks. These are the little things that happen industrial processes all the time, and none of us ever find out about it. It is like, "Oh, okay, just a little tiny practice, it doesn't really make any big difference." But all of these things together, because the heat wasn't as high and fat protects microorganisms from heat. So, the fat produced a barrier around the protein stuff that meant that it wasn't getting heated to the same temperatures. So, basically, there was some process in place to destroy all of the prions, and it just fell below the threshold at which it could get rid of all the prions. It left a couple of the prions in the little protein cakes. Also, these cakes sound fucking disgusting, apparently. 

I read a really good book called Deadly Feasts by Richard Rhodes about how all of this happened, and he described them as scab colored and said that they just smell like a dead body. So, just fucking gross, these little patty cakes of flesh stuff that you feed to fucking cows. 

Aubrey: I really love that. A running theme of this show is you being like, "These are the things that are too gross for me, and I can't talk about it." And then you bring episodes-- [laughs] 

Michael: And then, I share them and then I have to tell other people about them to share my grossed outness.

Aubrey: Well, and then you get a wave for however long of social media response and further prompts or--

Michael: Yeah. Check this out. 

Aubrey: Yeah, totally. [laughs] 

Michael: Yeah.

Aubrey: It's a very particular hell of your own making, bud. 

Michael: So, basically, by the 1980s, they've figured out what happened. It's actually very interesting. There's still debate about where the first case came from. So, one theory, the theory in the parliamentary inquiry is that, just a cow got it one day, the same way humans do. It's like prions are doing their little folds, and then there's a little 404 that gets folded into the cow brain, and the cow gets ground up and fed to other cows, and so on. That's one theory. The other theory is that it was a variant of scrapie.

Aubrey: Oh.

Michael: Because it was relatively widespread in sheep and everyone thought that other animals couldn't get it from sheep, they were grinding up sheep in these sheep parts in this slop stuff too, and that's how it got into the feed for the cows. So, that is still a mystery, the actual origin point, like, the big bang of all of this. But once you start having these diseased cow brains in the food, because you've had so much industrial consolidation, you're making this in huge batches. So, one infected cow goes into a huge batch and then gets spread out to hundreds of farms. So, that's how this ended up spreading underneath everybody's radar throughout the entire country in the early 1980s. 

So, what Howard Lyman said on Oprah that everyone's going to fight about in Texas in another decade is that, "The British government essentially treated this as a public relations problem and not as a threat to human health." That is on some level true, because before this, there had never been a case where a version of mad cow had spread from animals to humans. It is true that when you look at the government response, the government was basically seeing this as animal disease and was trying to protect the British cattle industry. But they weren't doing this. It's not like there was some flashing red light, like, this is about to jump to humans at any time. There were actual scientists and specialists in this who were like, "No, we've been eating sheep with scrapie for centuries. We've never gotten scrapie in humans."

Aubrey: Right. So, they're calibrated to completely the wrong scale of thinking, and they're approaching an incomplete list of institutions that need to be engaged, and all kinds of stuff. So, if you're focused on the wrong problem from jump or a small fraction of the total problem from jump, of course, you're going to come up with solutions that don't fix the whole thing if you don't know the whole thing exists. 

Michael: Yeah. Given the information that they had at the time, this really wasn't on anybody's radar. This is one of the most fucked up things I've ever read. All these other studies where people had tried spreading prions from one species to another or even within the same species. So, in 1985, there's an article on cannibal hamsters-

Aubrey: What?

Michael: -where they feed hamsters hamster brains, and they didn't get hamster spongiform encephalitis. 

Aubrey: Hang on, we got to unpack cannibal hamsters.

Michael: [laughs] I know. It's in notes. 

Aubrey: You don't get to just skate by cannibal hamsters. 

Michael: I know. [laughs] 

Aubrey: I'm assuming that this is a lab experiment, where hamsters are being fed. There's not a subset of hamsters that are like hannibal hamsters, hamsters. [laughs]  

Michael: There was a plane crash and the hamsters had to resort to eating one another. 

Aubrey: That makes more sense to me, and I feel relieved and very sad for those hamsters that got fed. 

Michael: I know.

Aubrey: Hamstered brains, that seems really disturbing, but glad to know that I can just love my unproblematic fav hamsters again. 

Michael: Yeah. At the time, the conventional wisdom was that, like, even if cows were eating cow brains, you would need a lot of brain material for this to spread from one animal to the other. For whatever reason, that turns out not to be true for cows. So, there's this big freak out in the 1980s, but it hasn't really crossed over to the public yet. There's news stories. It's a big deal, but it's kind of cast as an agricultural issue. There's this weird disease in cows, but the public isn't super-duper tracking this. So, after this initial flurry, a couple years go by, and then in 1990, there is a cat named Max, who dies of mad cow disease. 

Aubrey: Okay. 

Michael: It appears that the cat became infected from eating cat food that had ground up cow brains in it. 

Aubrey: Oh, my God. 

Michael: First of all, it's kind of scary that mad cow is spreading from one species to another, which they said couldn't happen. And then also there's just like Oprah, you're like, "Oh, wait, we're all eating fucking cow brains?" 

Aubrey: Totally. 

Michael: Hang on. 

Aubrey: Totally. 

Michael: It's just gross to think about.

Aubrey: Cat food. Didn't see it coming, but of course.

Michael: This kicks off a much larger wave of panic than there had been just when cows had it. This is also when we actually get the coining of the term, mad cow, which was something the British tabloids came up with. 

Aubrey: It has British tabloid written all over it. That is for sure.

Michael: Yeah. It also fits very well in headlines. 

Aubrey: Yeah. 

Michael: What's amazing to me is, the British tabloids who you know I hate with the depths of my heart, like, I loathe British tabloids. 

Aubrey: Yes. 

Michael: But this is a very weird case for me, because I've looked into a million moral panics at this point, and they all have the same structure of-- especially this tabloid media, whipping up a bunch of fears about something that is fake. The British tabloids, at this time start, whipping up a panic about mad cow and they're like, "It could spread to humans." And they're fucking right. [laughs] 

Aubrey: Oh, but this is like a stopped clock is right twice a day.

Michael: It's so funny to me.

Aubrey: Like, fully by accident/compulsive sensationalization of things that they hit on this, not because they're observing anything, right? 

Michael: Yeah. They're quoting these crank doctors who are like, "The medical establishment doesn't want you to know, which is true." That's accurate. Like, the medical establishment was super head in the sand about the possibility of this spreading to humans. The government, at this point, started doing all kinds of PR shit. The Minister of Agriculture went on TV and fed his daughter a hamburger as a PR move to be like, "Look how safe the beef is. Everyone should stop slandering beef." His daughter's fine, it's all fine. But it was true that the government was doing, like, I wouldn't say a cover up, but the government was definitely doing a lot of pro beef propaganda at the time. 

Aubrey: God, I just feel like our next episode, you're going to be like, "There was a bat boy-

Michael: I know. Exactly.

Aubrey: -and he did I know that from a Chicago lab." 

Michael: This is what's so funny is because this has all of the hallmarks of a moral panic. If you looked at this structurally, there's some pseudoscience stuff, there's taking a small number of cases and blowing them up into these disaster scenarios. But it happened. [laughs] It then happens. So, for the first time ever, kudos to the Daily Mail for getting it right. [laughs] 

Aubrey: Jesus Christ. 

Michael: It's bleak. 

Aubrey: Yeah. 

Michael: So, then, a couple more years go by after the cat-cow panic dies down, we then get to 1993, which is, when the first human cases start to show up. So, there's a farmer who, one of his cows had been diagnosed with mad cow, and he ended up slaughtering a bunch of his cows early. And then he starts getting this weird dementia and people are like, "Ah, this feels weird." But to my knowledge, that has never actually been confirmed as a case of mad cow. It could be and it could just be a really unlucky guy who happened to get dementia really early. We don't know yet. 

Aubrey: Boy oh boy, I had an encounter a couple of weeks ago with someone who was like, "I had COVID before they knew what it was."

Michael: Oh, yeah.

Aubrey: I was like, "Oh, in January or something?" And this person was like, "No, in 2017." And I was like, "Oh." [laughs] 

Michael: Oh, yeah. No, it hadn't leaked from the lab yet. [crosstalk]

Aubrey: Yeah. 

Michael: Also in 1993, there's a little girl named Vicky Rimmer who starts getting these weird symptoms at the age of 15. This is actually a really interesting example of something that is usually bad, but is true in this case. Her grandmother had been reading the tabloids and her grandmother was like, "I think this is mad cow." And she goes to the tabloids and the tabloids are like, "Mad cow and little girl," and start whipping up panic. Again, under any other circumstance, I'd be like, "This is very irresponsible." But it's fucking true. It has now been confirmed that this little girl had mad cow. 

Aubrey: Boy, oh boy. 

Michael: In 1994, there's a 15-year-old girl who has it. In 1995, there's another teenager who has it. And so, after a couple of these cases start trickling out, it becomes clear that something is happening. And so, on March 20th, 1996, the British government announces that there have been 10 cases of human mad cow disease. 

Aubrey: Do they have any sense of why so many teenagers?

Michael: To this day, it's not clear. There appears to be some weird, like, genetic marker that makes some people susceptible to it and not others. It's not clear to me why it's happening in children, although, the median age of these 10 cases is 28. It's also really interesting. I actually spent a long time trying to figure out where these cases originated, like, What did they eat to give them mad cow? But you can't really trace it back, because it's been seven years since these people ate the contaminated beef. 

Aubrey: Right. We've talked on the show about how bad people are at self-reporting data of what they ate today. 

Michael: Right.

Aubrey: Then add seven years, it's not getting better. 

Michael: The only thing you could even do to investigate is like, "Well, did you eat beef between 1987 and 1989?" That's as good as you can do. This incubation period also foments another much more mainstream wave of panic. This is when Oprah finds out about it, this is when the rest of the world finds out about it. This is a huge deal that it's like, "Okay, there's tainted beef that has a 100% fatality rate, like, eight years later." [laughs] 

Aubrey: Boy, oh boy.

Michael: That's fucking terrifying. 

Aubrey: Yeah, totally. 

Michael: Of course, the tabloids now go into overdrive, and there's various predictions of how many people will die. The highest estimate is 500,000 people. 

Aubrey: Jesus. God. 

Michael: Eventually, it's 177 people. So, this model is way fucking out there, but it's like, "Yeah, you start counting up the number of people who eat beef."

Aubrey: Yeah, totally. 

Michael: This is when the rest of the world kicks into action. There's something very funny that the EU has a ban on British beef in place for 10 years, but even after they lift it, France just keeps the ban in place informally, even though that's illegal under EU rules. France is like, "No, we've got problems with the British. We're going to keep those--" [crosstalk] 

Aubrey: This feels very France.

Michael: Yeah. [laughs] 

Aubrey: Just like we feel like, "What are you going to do about it?" [laughs] 

Michael: Yeah, fuck it. We're just not going to tell you guys about it. 

Aubrey: We never liked you anyway. Yeah. [laughs] 

Michael: So, we're now going to do back to Amarillo, Texas. 

Aubrey: [laughs] 

Michael: It's January 1998 again. It's a weird timeline, because the mad cow panic in America really peaked in 1996 when Oprah was doing her episode, and then fell pretty quickly. Once people figured out that there had never been a case of mad cow in America, and there was no human case of mad cow in America ever either. This remained an extremely British phenomenon. To this day, 140,000 cattle in Britain were diagnosed with mad cow. And in Portugal, it's like 200. In France, it's like 150. It's really isolated outside of Britain. So, by the time the trial starts, like, almost two years later, the country is over mad cow. 

Aubrey: Right. If it's unique to this one industry in this one country, then you figure out, like, "If you're not living in the UK, you figure out that you can let go of some of that anxiety." 

Michael: So, the trial itself begins. Oprah and Howard Lyman, both, eventually end up taking the stand. Oprah testified for three days. I couldn't find trial transcripts, which is really annoying. I wanted to do a dramatic reading of the testimony. All I know is from what has been included in the appeals and the various court decisions and media reports. Howard Lyman says, the first question they asked him when he got onto the stand was like, "Are you a vegetarian? Yes or no?" They were gassing him. It's like animal rights extremist. It's like they're playing to the Amarillo crowd. 

Aubrey: Yeah, totally. Aha. 

Michael: But then, okay, I'm just going to spoil this. They really never had a chance of winning this lawsuit. 

Aubrey: Really? 

Michael: They have to prove a series of things to win the lawsuit. So, a lot of the trial rests on the fact that Oprah, like her show, caused this huge drop in cattle prices in April of 1996. 

Aubrey: Uh-huh. 

Michael: The prosecution calls traders, they call an economist who's like, "I see no other structural reasons why the price of beef would have fallen at that time." But then, it's really hard to prove this stuff, like, why does the price of a commodity fall at a particular time? Well, is Oprah's show in there? Maybe. But to get damages, they have to show that she was basically single handedly responsible for it. And cattle prices were down for 11 weeks. So, somehow, they have to prove that Oprah's show was so powerful that people stopped eating beef for three months. 

Aubrey: Yeah, totally. Honestly, I buy it. Oprah was extremely influential at that time. 

Michael: I actually do too, honestly. Yeah.

Aubrey: Again, this is part of what we come up against in nutrition research all the time. In order to prove this thing, you have to rule out every other possible thing that could cause this, and that's going to be really hard to do when there is a legitimate public health issue at play. People are getting this news from more than just Oprah. So, you have to prove, it was Oprah and not 60 Minutes, or Good Morning America, or the Today show, or whoever else covered it. 

Michael: This is what's so weird to me, is like, if you google around, you can find a bunch of articles from the time being like, "Could mad cow happen here?" Some of them are more responsible than others, but panic about mad cow spreading to the US was very widespread. It's something the entire media was doing. It's not like Oprah went out on a limb with this segment, right? 

Aubrey: Yeah. 

Michael: There's also the defense calls various other economists who say that, prices of beef had actually been falling for a while. They call this guy to do this rapid fire questions of like, "Isn't it true that demand in Asia was falling at that time? And isn't it true that there was more supply coming out of slaughterhouses at that time?" There's all these kind of supply and demand things that, again, like, normal people never really think about. But all of these things are what these prices are really based on, it's like supply and demand, intrinsic factors. They're like, "Well, there's all this other stuff happening at the time," and it's really hard to put all of this at the feet of Oprah. 

I agree with you. I think that she had something to do with it, like, the reputation of beef fell. But there were also, children dying in the United Kingdom from eating fucking beef. So, there was also enough panic in the population at large that like, yeah, if children are dying from eating something, people are going to stop eating it for a while. I get that that sucks for your industry and it's unfair, but you can't blame any one media figure for that. 

Aubrey: Yeah, totally. I feel similarly honestly about the-- It feels like there's been an uptick in the last few years in people holding Oprah personally responsible for Dr. Oz, and Dr. Phil, and all of that kind of stuff. Absolutely, she played an influential role there and there is some accountability to be had there, but not more than there is for those guys themselves. 

Michael: Yeah, exactly. 

Aubrey: She's a huge cultural force. Absolutely, there's more to talk about here, but again, the degree to which people come after her personally for the big cultural waves that sometimes she starts and sometimes she rides, it seems disproportionate to me. 

Michael: Also, even under this lower standard, they still have to prove that Oprah's statements and Howard Lyman's statements were false and that they knew that they were false. So, that's a pretty fucking high bar, right? And if you look at the actual statements that they're accusing Oprah and Howard of saying, Oprah says, "It stopped me cold from eating another burger." Well, that's not a factual statement. 

Aubrey: "False. No, it didn't. I saw you eat beef on your show." 

Michael: yeah. We talked last episode about how opinions are protected. And then Howard Lyman's, he says, "This disease could make AIDS look like the common cold." Well, that's a prediction about the future. That's like me saying like, "Well, if self-driving cars become normal, lots of bikers are going to get murdered in traffic," which is fucking true, by the way. But also, that's an opinion. That's my prediction of the future. That's not a fact. It's very obvious from the structure of that that it's an opinion. 

Aubrey: Well, and also, it's a figure of speech, right? 

Michael: Yeah.

Aubrey: X will make Y look like Z. 

Michael: Yeah.

Aubrey: He's not giving it enough legs for you to have a factual statement to debunk. 

Michael: Right. 

Aubrey: This feels a little bit in courtroom dramas when they'll have a witness on the stand and be like, "Didn't you say you'd do anything to be on this TV show?" 

Michael: yeah.

Aubrey: It's treated as this big smoking gun moment and I'm like, "Honestly, I said I would kill for a grilled cheese yesterday." 

Michael: Yeah, people say stuff.

Aubrey: Like, don't. Let's not.

Michael: It feels like the same thing with Howard's claim that the US is treating this like a public relations issue, just like Britain did. You could say that that's closer to a factual claim than, I'll never eat beef again. But it also very firmly falls into the category of analysis to me. Like, it's not a straightforwardly factual claim. It's also not straightforwardly false. One of the things that Howard mentioned on the Oprah show is that the meat industry instituted a voluntary ban on putting brains and spines in these protein patty cakes. But the US government didn't make it mandatory. And what he's saying is that the US government is treating this like a PR issue, not a threat to human health. Maybe you'd disagree with that or maybe you would put it differently, but it's not just a clear-cut factual statement, and it's not, in a clear cut way, wrong. 

Aubrey: Yeah. 

Michael: Oprah talked later about how her entire strategy was basically making this a trial about free speech. They talked about the slippery slope. "If my show gets busted for asking questions about the safety of beef, think about all of the other shows that will have this huge, chilling effect throughout the entire journalism industry." So, in Kitty Kelley's biography, she has a description of Oprah testifying. She says, "After repetitive questioning, she leaned into the microphone and in a commanding voice said, 'I provide a forum for people to express their opinions. We're allowed to do this in the United States of America. I come from a people who have struggled and died in order to have a voice in this country, and I refuse to be muzzled."' That's a strong argument. 

Aubrey: Yeah, it totally is. And also, that's a strength of speech in her own defense that you don't often hear from Oprah. She'll tackle issues that way, she'll do all kinds of stuff, but maybe this is just a sign of my age and generation, but I don't remember hearing Oprah talk in those terms about herself. 

Michael: She also says, this is also from the Kitty Kelley biography. When she was asked about her integrity, she said, "I am a black woman in America, having gotten here believing in a power greater than myself. I cannot be bought. I answer to the spirit of God that lives in us all." She said, her influence was not enough to drive Americans away from beef. "If I had that kind of power," she said, "I'd go on the air and heal people."

Aubrey: This is a tricky one, because she is extraordinarily influential at this point in her life and career. But again, to trace all of this industry wide impact back to just her is bonkers. 

Michael: I think that she's fundamentally making a chicken shit defense. Throughout the trial, she keeps saying, "Well, I'm not a journalist. You can't expect me to have the same standards as a traditional journalist. I'm an entertainment talk show." And then she also hides behind this extremely Gwyneth defense of like, "I'm just asking questions." That is chicken shit. Oprah has huge influence whether or not you say, "Go out and buy this book, please." If you say this book is good, people are going to go buy the fucking book. If you say beef is bad, people are going to stop buying beef. Like, "Come the fuck on." But then also, you don't want to have a legal regime where any time you say, "Driving a Honda sucks," and then fucking Honda sues you. 

Aubrey: Yeah.

Michael: So, if that becomes the legal standard, then the chilling effect would be profound. If you just can't even, as much as I hate to use the term, ask questions about whether a product is harming us. So, it's like, Oprah should not have done this, but also the cattlemen should not have done this either. This is an ESH situation.

Aubrey: Michael Infowars Hobbes just asking questions. [laughs] 

Michael: I know. I think it's important to be able to ask the tough questions. 

Aubrey: It's tricky, because it's an argument that Fox News makes too-

Michael: I know.

Aubrey: -to be like, "It's not news. It's opinion."

Michael: I know. [crosstalk] 

Aubrey: In this case, I take her point about the chilling effect on journalism, and I don't think that's wrong. 

Michael: Yeah.

Aubrey: Journalists are historically not the most moneyed among us. So, if you take on a particularly rich or powerful industry, they can file suit against you, and just wait until you run out of money or will to fight it. They can just drown you in lawsuit and motions and everything. 

Michael: So, the trial is very weird, because weeks before the verdict, it effectively ends. To recap, the Texas statute says, "The information states or implies that a perishable food product is not safe for consumption by the public." So, this is what the entire trial has been resting on. So, after the prosecution lays out its case, Oprah's defense files a motion to dismiss. My understanding is this is fairly common that defense teams would be like, "We all saw how shitty that case was. Let's get this whole thing out of here." And so, based on this motion to dismiss, the judge rules that beef is not perishable. 

Aubrey: I'm sorry. What the fuck? 

Michael: [chuckles] It's so fucking weird. So, as we discussed at length last episode, because I was foreshadowing, [Aubrey laughs] all of these veggie libel laws are based on the argument that existing libel laws might be fine for the Gwyneth Paltrow's of the world. But because our products are perishable, we should get more protection from defamatory claims. And so, a huge amount of the pretrial motions, the interstitial things within the trial are arguing over, is cattle a perishable product? Because if it's not perishable, then this law doesn't apply. 

Aubrey: Michael, this went from being one of the most fascinating topics [Michael laughs] we've gotten into to the biggest pile of brain rotten-- [laughs] 

Michael: It's so fucking weird. So, the judge in the case rules in this motion to dismiss that, 'Cattle is not perishable, because if the value of cattle falls precipitously because Oprah made a TV show about how cattle is bad, you can still sell your product. She says like, you can sell it to hot dog makers. You can grind up your old diseased cows and put them in hot dogs."

Aubrey: Right. Exhibit A jerky. 

Michael: Exactly. 

Aubrey: Yeah. 

Michael: The phrase that they use is it's not beyond marketability for a limited period of time, which the entire law rests on. 

Aubrey: I am sorry. This is like the cannibal hamsters. My brain can't move on. 

Michael: Cattle is like straightforwardly perishable. But then when you think about it, I guess, everything is perishable. 

Aubrey: Humans are perishable. 

Michael: Yeah. Long enough time goes by, it's all fucking perishable. So, they were hoisted by their own petard. They used this fake thing about how like, "Oh, we're perishable, so we don't count to get these laws passed." But then the judges are like, "Well, according to your own bullshit ass law, your product isn't perishable."

Aubrey: Okay.

Michael: So, as a result of this motion to dismiss, the trial then gets kicked down to ordinary business disparagement laws. So, under this law, they not only have to prove that Howard Lyman and Oprah's statements were false, they knew they were false. They also have to prove that they said them anyway out of malice. Oprah and Howard Lyman hate these specific cattle ranchers so much that they're going to state a knowingly false claim. 

Aubrey: I like the idea that Oprah has a red yarn bulletin board somewhere in 1 of her 12 homes. 

Michael: Yeah.

Aubrey: "The cattle industry. It's time. And we start with these small fries." 

Michael: Yeah. As we mentioned last episode, at no point, did she mention Texas or obviously these specific people in her episode. She was just talking about beef. So, it's just a frivolous lawsuit then becomes triple frivolous. So, the trial goes on for a couple more weeks and then we finally get to the verdict and it's a unanimous verdict and everybody's just like, "No, the claims are not false." Whether or not they knew they were false, you haven't even proved that they're fucking false. 

Aubrey: Listen, this is the Gwyneth Paltrow ski trial, where it's like, everyone's watching with bated breath, and then at the end, everyone is of course like, "No, he said he didn't even see what happened." He was just like, "I think you're wrong." [crosstalk] 

Michael: It's just like a huge fucking waste of everybody's time, ultimately, like, what are you doing? So, there's a very weird thing on the courthouse steps afterwards where everybody declares victory. So, Oprah cries in the courtroom. It's clear this is very emotional. It was not clear that she was going to win. I can see how this would be a hugely anxiety producing thing. She then goes out on the courtroom steps and says, "Free speech not only lives, it rocks." So, she's casting this as a free speech trial. The cattlemen also on the steps say that, "We have won, because we've firmly established that US beef is safe."

Aubrey: "And not perishable." 

Michael: Yeah. [laughs] I also think that the cattlemen are just factually wrong. The mad cow thing was already over at this point. The beef industry had already bounced back. What were you even trying to prove? 

Aubrey: Well, by this standard, American beef, to your point, was always "safe in this way." 

Michael: I feel like the real legacy of this case is that way more Americans knew, at this point, that they grind up cows and feed them to other cows than did before, which that's not great PR for your industry. You're fighting the mad cow stuff, but what people are grossed out by is that.

Aubrey: Look, in that way, the real winner here is Howard Lyman. 

Michael: Oh, yeah. 

Aubrey: This has taken a one-hour Oprah show and spun it into years of publicity for the guy who couldn't stop talking about feeding cows to cows or whatever, like, chef's kiss, incredible. 

Michael: Also, a little Lyman epilogue. I watched a bunch of YouTube videos of where he's given talks where he talks about this. According to him, Oprah's producers asked him to pay them back for her legal fees of $5 million,-

[laughter] 

Michael: -which is so fucked. 

Aubrey: Yeah, that's fucked up. 

Michael: No. It also, I mean, who knows if this is true or whether Oprah knew about this or whatever, but it does reveal the fundamental misunderstanding of this. Oprah, it's not that he said it. It's that you aired it. 

Aubrey: Right. Totally. 

Michael: You found him, invited him on your show, didn't edit out the parts where he said a bunch of shit that was scaring the public. To put all of the responsibility on him for saying it, and none of the steps of the process in which you amplified it and platformed it. Come the fuck on. You're way more responsible for this. 

Aubrey: Look, if you are a very famous, wealthy person, you are never disputing the check. 

Michael: Yeah. There's then a series of appeals. I've read all of the appeals. They're more available than the original court documents. Every single time they appeal, like, every district judge, whatever, is just like, "What? No." This is obviously like, "What the fuck are you talking?" These are not false claims. These are not libelous. A lot of them are opinion. This is very well protected by the First Amendment. 

Aubrey: We all know beef is like twinkies. It never goes bad. 

Michael: Cattle live forever. 

Aubrey: Yeah. 

Michael: Yes. 

Aubrey: Yes.

Michael: One of the rejected appeals, the judge says, "Stripped to its essentials, the cattleman's complaint is that the dangerous food episode did not present the mad cow issue in the light most favorable to United States beef." It's like, "Yeah, you guys are mad that you got bad PR."

Aubrey: Yeah, totally. Not untrue. It was not a flattering episode. Also, not untrue. It wasn't set up with an eye toward a fairness or journalistic integrity in a meaningful way. And that doesn't mean that someone owes you $12 million. 

Michael: But then the really interesting epilogue of this is that, because of this decision that cows live forever and the trial getting kicked down to ordinary business disparagement statutes, this wasn't tried under the veggie libel law. This wasn't a test of the concept of veggie libel. So, they're all just sitting there on the books.

Aubrey: Boy oh boy oh boy.

Michael: I read, actually, a really interesting article about why they haven't been tested. I think, because people are afraid that if you try using them, they'll be struck down on First Amendment grounds. Like, they're pretty blatantly unconstitutional, honestly. And so, if you use them, they might get overturned. Whereas if you don't use them, you can use threats of them and the existence of them to have this chilling effect, which is what they wanted ultimately, right?

Aubrey: Gross. Yeah, totally. 

Michael: You just have to be more careful if you're talking about an agricultural product in these 13 states than you would for other products. There's only been three cases tried under the veggie level laws, and one was dismissed and two were thrown out. 

Aubrey: I was going to say, what are the other two? 

Michael: Wait, [laughs] this was going to be the ending quote. Do you want to read the paragraph? 

Aubrey: I do want to read a paragraph. 

Michael: You're going to love this. This is the weirdest fucking thing. Okay, sending this to you. 

Aubrey: "A second lawsuit was brought by a group of emu ranchers against Honda Motor Company arising from a television commercial for the Honda Civic."

Michael: Emus versus sedans. 

Aubrey: "In the ad, a young man named Joe drives his Civic to meet with several potential employers about career opportunities. He then talks with a real estate developer, who tells him "Joe, let's not call it a pyramid scheme." Just after that, Joe goes to an emu ranch, where he and the rancher observe a pen of grazing emus and the rancher says, "Emu, Joe, it's the pork of the future." A group of ranchers sought suit under the Texas statute." Incredible. 

Michael: I don't think less of emus after this. I think the emus are fine. 

Aubrey: This group of geckos filed suit against Geico. 

Michael: What are we doing here? This is another one where a judge looked at it for three minutes and was like, "What? No, [blows a raspberry] go away. This is not a real case." And then, it gets thrown out.

Aubrey: We can't have ducks suing Aflac. It's not going to happen. 

[laughter]

Michael: So, that's the bleak epilogue of the veggie libel laws. The less bleak epilogue of mad cow disease is that like, "Yeah, it has been dealt with." Like, it's not really a big deal in Britain anymore. We know the cause of it. It's been addressed. We're not getting cases anywhere near like we used to. There was actually a case of it discovered in the US in 2003. Again, there's these structural elements in the US beef sector that keep it from becoming a massive outbreak. They found another case in 2005, another case in 2006, another case in 2012. So, every once in a while, these things do pop up in various countries, but it hasn't really spread throughout the system. 

There's been a couple other cases of mad cow in humans, like, very isolated cases, but it's fewer than 200 people worldwide total, and 170 of those were the original outbreak in Britain. So, you can't say the risk is zero. This isn't something that is, like, this will never happen again, or whatever, but this is an extremely rare thing to happen. You're more likely to get it just as you age randomly than you are to get it from beef at this point.

Aubrey: Are they still feeding cows to cows in the UK or in the US? Is that still happening? 

Michael: My understanding is they do still do this, but they remove the brain and the spine, which is where most of the mad cow stuff is.

Aubrey: Remoove.

Michael: [blows a raspberry]

Aubrey: Tiny repeating machine strikes again.

Michael: Yeah. 

[laughter] 

[Transcript provided by SpeechDocs Podcast Transcription]

People on this episode

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Aubrey Gordon

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Michael Hobbes

Host