Publisher avoids liability for ad that allegedly disparaged plaintiff's goods

Jewel Sanitary Napkins, LLC v. Busy Beaver Publications, LLC, No. 23-cv-126-slc, 2025 WL 1220311 (W.D. Wisc. Apr. 28, 2025)

Jewel makes sanitary napkins containing a layer of material called graphene that Jewel claims has health benefits, while it touts the risks of tampons. The Amish community is a major market. “Jewel saw its sales drop significantly in the Amish community when, in August 2022, defendant Busy Beaver, a classified advertising publication distributed to Amish and Mennonite communities, published a reader-submitted letter (the Concerned Sister ad) that Jewel says made false accusations about its products.” Jewel sued Busy Beaver for common law libel and trade libel, and the court granted Busy Beaver summary judgment.

(Frankly, I’m pretty surprised at the chutzpah involved in suing here, given the Q-Ray-like nature of the advertiser’s claims, which include that graphene relieves abdominal cramps and fatigue, helps to eliminate bacteria and aroma, and boosts metabolism and immunity. Jewel also said that graphene moves heat away from your core and “contains vibrational energy.” Jewel’s chemist describes graphene as a “quasimetal” that “shares some properties with semi-conductor materials like Silicon” and “is highly conductive for both electricity and heat.” Jewel’s promotional videos show the pad’s graphene strip, or the pad itself, lighting a lightbulb.)

Busy Beaver has regional editions, and in mid-2022, the Busy Beaver Pennsylvania office received a completed classified ad submission form and payment from an individual named Betty Lantz. Lantz checked “no” to the question asking whether she wanted her name or address included in the ad. Busy Beaver’s CFO testified that the publication has printed ads without identifying information, so long as the person who submitted the ad is identified on the submission form. (“Jewel subpoenaed Lantz but she refused to be deposed in light of her Amish belief against involvement in legal matters. Jewel did not seek to compel her deposition.”) The ad:

Attention! Are the Reign products as safe as they say? Graphene is a conductive metal meaning it attracts electrical waves/radiation from the air, Do we want this close to our bodies, Will we see serious consequences for using this product? Don’t just go by what the company says, A concerned sister.

Months before the ad was published, “rumors had begun circulating in the Plains [Amish and Mennonite] communities about Jewel’s products, including that the sanitary napkins caused cancer, were covertly delivering Covid-19 vaccines to women, and contained radiation and metal.” (Live by the junk science, die by the junk science?)

The main salesperson for the Pennsylvania Busy Beaver, Ivan Lapp, is Amish and doesn’t use Google, only email, QuickBooks and specific websites, such as the Busy Beaver website. He proofread the ad, one of approximately 1,400 ads each week. “Many of these ads make claims about health products, and about four to six ads each week are advertisements for Reign products. The Busy Beaver does not independently verify the claims made in the ads it publishes, and does not publish images of women in bathing suits, promotions for rock concerts, or political ads.”

Jewel complained about the Concerned Sister ad, and Busy Beaver offered Jewel free pages in the Busy Beaver every week until the end of the year (about three months) so that Jewel could “print information on Jewel’s products and correct any false information that it believed was circulating.” Even after Jewel sued, Busy Beaver continued to allow Jewel’s distributors to place ads in the Busy Beaver, just as they did before the lawsuit.

Lapp testified that the ad caught his attention when he first proofread it because it was “questioning somebody else’s product,” but he did not have time to do “any research,” did not have a number for Lantz, and ultimately “left it go” without discussing the ad with anyone. “Lapp noted as a general matter that he would call [higher-ups] about an ad if he thought it was inappropriate, such as campaign or entertainment ads that he felt did not fit the publication’s mission, but had done so only eight or ten times over the years.”

Although Busy Beaver initially stated that the original submission form had been shredded after publication, Lapp later recalled that he had taken the form back to Lantz’s house at some point after Jewel called to complain about the ad’s publication. He left the form with Lantz’s mother and said the Busy Beaver would no longer accept such ads. The court denied Jewel’s motion for sanctions related to the putative destruction/fate of the submission form; basically that was what you can expect from a small business.

Jewel conceded that it was a limited purpose public figure, and it couldn’t create a factual issue on actual malice, which requires knowledge of the falsehood or reckless disregard for the truth, which requires that the defendant “in fact entertained serious doubts” about the trust of the statement or that the defendant published it “with a high degree of awareness of [its] probable falsity.”

Busy Beaver’s proofreader, though, averred that he had no idea whether the content in the ad was true or not. Jewel’s circumstantial evidence was insufficient to allow a jury to find knowledge or reckless disregard.

Jewel argued that actual malice could be inferred from Busy Beaver’s publication of an “inherently improbable” and “highly disparaging” ad claiming that graphene is a conductive metal that attracts electrical waves and radiation from the air. But “it is not the case that the more serious the charge, the less likely it is to be true.” And, given Jewel’s own claims, a reasonable jury could not conclude that Concerned Sister’s statement about graphene was so inherently improbable that Busy Beaver acted maliciously in publishing it. Nor did it matter that Busy Beaver published the ad “anonymously,” since Lantz put her name and address on the submission form even if not on the ad, and that was not inconsistent with Busy Beaver practice.  “Indeed, in the same issue of the Busy Beaver as the Concerned Sister ad, the Busy Beaver also published an ad with only a phone number asking readers to consider their personal care products and ‘Go toxin free.’” Busy Beaver didn’t violate its own policies (against women in swimming suits, ads promoting rock concerts, or political ads), and, even if Lapp did depart from “professional standards,” that alone is not enough “for finding actual malice” in cases concerning public figures.

Jewel argued that Lapp demonstrated willful blindness by failing to investigate the truth of the ad’s statements, and that the ad could easily have been proven false “with a quick Google search.” But “reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing”; there must be enough evidence to support the conclusion that a defendant “in fact entertained serious doubts as to the truth of his publication.” The court highlighted that “Lapp proofreads approximately 1,400 ads a week and many of these ads make claims about health products that Lapp does not independently verify.” Moreover, there was no evidence that Lapp “accesses the internet in any beyond-business capacity that could include a general internet search about graphene or Jewel’s products without violating his Amish beliefs.”

Even if Lapp had done an internet search, the evidence does not bear out that the alleged falsity of the Concerned Sister ad would have been immediately apparent in the search results to an Amish man who sells and processes classified ads. In point of fact, Jewel produced a screenshot in discovery of an internet search resulting in a description of graphene as “not metallic” but “a quasi-metal since its characteristics of graphene are similar to those of semi-conducting metals.”

Should non-Amish publishers have to do searches?

Jewel argued that Busy Beaver was biased against it, because Busy Beaver didn’t print a retraction, but  “Busy Beaver does not print its own retractions, preferring instead to allow the complainant the opportunity to print whatever corrective content the complainant wants in the complainant’s own words.” Jewel chose to sue instead, but that’s not evidence of malice. As for an alleged threat to cease publication of ads from Jewel’s distributors, that was a confidential, inadmissible settlement communication from Busy Beaver. Anyway, Busy Beaver never stopped publishing ads from Jewel’s distributors, “in further contravention of Jewel’s allegations of ill will.”