Boston Nutrition Soc., Inc. v. Stare

• Citation: 173 N.E.2d 812,342 Mass. 439
• Parties: BOSTON NUTRITION SOCIETY, INC. v. Frederick J. STARE.
• Decision Date: 10 April 1961
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 812

173 N.E.2d 812

342 Mass. 439

BOSTON NUTRITION SOCIETY, INC. v. Frederick J. STARE.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Dec. 7, 1960.

Decided April 10, 1961.

John R. Auchter, Springfield, for plaintiff.

John R. Hally, Boston, for defendant.

Before WILKINS, C. J., and SPALDING, WILLIAMS, CUTTER and KIRK, JJ.

SPALDING, Justice.

The substance of the declaration in this action of tort for libel is as follows: The plaintiff is a charitable corporation organized under G.L. c. 180, and is 'engaged in educational work with reference to proper food and diet.' Since 1956 it has enjoyed the good will and coperation of its members and of physicians and persons throughout the country, and it depends on this good will and coperation for the success of its charitable activities. The allegedly libellous statement was made by the defendant in an article in the March, 1959, issue of McCall's magazine. In this article the defendant, who was the head of the nutrition department of the School of Public Health of Harvard University, answered questions presumably sent in by members of the general public. The answer that is alleged to be defamatory and the question to which it was addressed are as follows: 'Q. I am enclosing a clipping from an 'open letter' from the Boston Nutrition Society that is really frightening: 'The enriched white bread fed to the American public is a national scandal. First of all, the wheat grown on poor soil and fertilized with water-soluble commercial fertilizer is of low protein content. * * * The modern flour mill removes the precious vitamins and minerals. This is then bleached with a powerful oxidizing agent, chlorine dioxide (which is a poison); and to this lifeless mess, a few dead synthetic chemicals (improperly called vitamins) and inorganic iron are added. * * * We not only think these foodstuffs are worthless: we believe that many of them are positively harmful. * * * We know that we are a nation of sick people. Our hospitals are crowded to capacity. All the metabolic diseases are increasing by leaps and bounds. Coronary thrombosis is attacking young men in their twenties. Cancer is the leading cause of death in children under 14. Diabetes and mental disease are on the increase even in children. And dental cavities are rampant!' Since my two boys refuse to eat any but white bread, I am, naturally, terribly concerned. Is there any connection between white bread and all these diseases? * * * A. These scare tactics are typical of the food-faddist organizations. The name 'Boston Nutrition Society' sounds good, but if you were to telephone them, you would discover, as we did, that the phone number is the same as for the Copley Square Diet Shop, purveyors of so-called 'health foods.' The faddists want you to believe that the food industry is forcing white bread down the throats of the American public. However, for centuries the majority of mankind has preferred white bread. It is still the overwhelming favorite. Despite the efforts to 'sell' whole wheat flour, the sale of dark flours has remained essentially the same, about two to three per cent of the total flour output. From a practical viewpoint in most American diets, dark flour and enriched white flour are the same in food value, and they both make important contributions to our diet. To imply or suggest that enriched white flour can cause or contribute to the diseases listed in the clipping is a cruel and reckless fraud. The Food and Drug Administration of the Federal Government is an eternal watchdog safeguarding the food you eat. Moreover, the legitimate food industries contribute millions of dollars to research in their own laboratories and to a lesser extent grants and aids to universities. Many large food concerns publish some of our best nutrition education.'

The plaintiff alleged that by causing this statement to be published, without right or privilege, '[t]he defendant thereby falsely and maliciously suggested and intended to suggest * * * that the plaintiff * * * was not an honorable, truthful * * * organization, but was * * * perpetrating a cruel and reckless fraud'; that 'the plaintiff's motive in using the telephone number of the Copley Square Diet Shop was sinister and corrupt and for the purpose of defrauding the public'; that the 'plaintiff was a 'food-faddist organization' comprised of 'faddists' (connoting insincere, odd, uninformed, reckless eccentrics) who are trying to mislead and impose a 'cruel and reckless fraud' upon the American people'; and that 'the plaintiff was guilty of using 'scare tactics' instead of educational procedures, all in the performance of its duties.'

From an order sustaining a demurrer to the foregoing declaration the plaintiff appeals. G.L. c. 231, § 96. One of the grounds of the demurrer--and the only one that need be considered--is that the matters alleged are insufficient in law to enable the plaintiff to maintain the action.

A demurrer to a declaration in libel cannot be sustained unless the words are not reasonably capable of any defamatory meaning. Ingalls v. Hastings & Sons Publishing Co., 304 Mass. 31, 34, 22 N.E.2d...