Can Generic Products Be Disparaged? The "Of and Concerning" Requirement after Alar and the New Crop of Agricultural Disparagement Statutes

Authors

Eric M. Stahl

Abstract

Under the group libel principle, a statement broadly critical of a large group generally cannot give rise to a defamation claim; it is said that such a statement does not refer to, or is not of and concerning, any particular individual. This Comment addresses the extent to which the "of and concerning" requirement and group libel principle apply to claims of product disparagement, a tort similar to defamation but encompassing pecuniary injury, as opposed to damage to reputation, resulting from false statements. In particular, this Comment examines whether speech generally critical of a generic product can give rise to disparagement liability. Recent statutes provide for such generic disparagement claims by agricultural producers, and one court, in the litigation resulting from the Alar controversy, has held the group libel rule does not bar such claims. This Comment concludes that, in most circumstances, the "of and concerning" requirement cannot be satisfied without a specific reference to the allegedly disparaged product and that generic disparagement claims usually should be barred, for both policy and constitutional reasons.

First Page

517

Recommended Citation

Eric M. Stahl, Notes and Comments, Can Generic Products Be Disparaged? The "Of and Concerning" Requirement after Alar and the New Crop of Agricultural Disparagement Statutes, 71 Wash. L. Rev. 517 (1996).
Available at: https://digitalcommons.law.uw.edu/wlr/vol71/iss2/8