concurring:
While I acknowledge that our court’s opinion may assume without deciding the applicability of the False Disparagement of Perishable Food Products Act, I have become convinced that the district court’s interpretation of the Act was wrong. Plaintiffs suing under the Act should not have to prove, as a threshold to coverage, that their particular products may decay “beyond marketability” within a limited period of time. The purpose of the statute’s definition is to distinguish perishable from processed food products, not to eliminate protection for some of the farmers and ranchers for whom the statute was intended. The statute contains several high hurdles to liability; this is not one of them.
Under the Act, a person may be held liable for damages sustained by the producer of a perishable food product if that person knowingly disseminates false information to the public stating or implying that the producer’s product is not safe for public consumption. See Tex. Civ. Prac. & Rem. § 96.002. This litigation represents one of the first applications of the Act. At trial, the parties disputed whether appellants’ live cattle are a “perishable food product” protected under the Act. The court held that they are not.
To support the position that their live cattle constituted a “perishable food product,” the cattlemen introduced evidence that cattle fattened in a feed lot must be sold when they reach their marketable weight.1 After the marketable weight is *691reached, the cattle begin to put on extra fat. This extra fat devalues the cattle, reduces their selling price, and costs the rancher in excess feed. Although a “maintenance feed” can be used to maintain cattle weights, this feed reduces marbling in the beef, toughens the beef, and, again, decreases the cattle’s value. Cattle remain at their marketable weight for only a brief period of time. Indeed, the district court found, and the appellees apparently concede, that cattle begin to diminish in value once they have passed their marketable weight. See 11 F.Supp.2d at 863.
While recognizing this diminution in value, the district court found that live cattle do not decay “beyond marketability” because they may still be sold for uses other than USDA prime beef — e.g., hamburger or dog food. This interpretation, however, would seem to vitiate the applicability of the statute to food products that were undoubtedly intended to fall within the protective reach of the Act. For example, bananas are undoubtedly a food product that will decay over time. Yet, bananas with brown spots have uses beyond consumption as fresh bananas — e.g., when processed in banana bread and certain non-food uses. The Act, properly construed, does reach fed cattle.
The appellees’ interpretation that the Act was not intended to cover live cattle is inconsistent with the statute’s language and legislative history. A perishable food product is “a food product of agriculture or aquaculture that is sold or distributed in a form that will perish or decay beyond marketability within a limited period of time.” Tex. Civ. Prac. & Rem. § 96.001. First, the statute places no limit on the term “agriculture,” which the dictionary defines as “the science or art of cultivating the soil, harvesting crops, and raising livestock.” Webster’s Third New International Diet. (1981). Raising cattle, an agrarian occupation, is within the language of the statute; fed cattle are “beef on the hoof,” hence, a food product. Moreover, beef is “a food product of agriculture” and is “distributed in a form” that is perishable. The district court’s denial of coverage to live fed cattle overlooks this aspect of the statutory definition. Reinforcing coverage of fed cattle is the fact that the statute covers aquaculture, presumably including the cultivation of oysters, shrimp, or catfish. An act designed to protect production of aquatic animals for food, a relatively new Texas industry, could not have meant to exclude cattle-raising, which is intimately bound with Texas’s history and current economy.
The legislative history supports the cattlemen’s position that live cattle are covered by the Act. See House Comm, on Agrie, and Livestock, Bill Analysis, Tex. H.B. 722, 74th Leg. (1996) (statute would “help ensure that any claim about the safety of a perishable ... meat ... is based upon facts”); see also id. (noting necessity for protecting products given “the short amount of time to harvest and market perishable agricultural ... food products” (emphasis added)).
Even if the cattlemen had to show that their cattle would “decay beyond marketability,” I believe, contrary to the district court, they did do so. The evidence adduced at trial demonstrates that live cattle appear to decay steadily in value from their optimum date of sale (perish beyond marketability) just as an apple hanging from a tree might rot. That the decay occurs pre-slaughter does not detract from the protections of the statute. An apple will rot on the tree as easily as it will rot jn the grocer’s produce section.
The district court’s interpretation overlooks that the Act was passed to prohibit the dissemination of false information claiming a food product “is not safe for public consumption.” Tex. Civ. Prac. & Rem. § 96.002 (emphasis added). Under the district court’s interpretation, it might *692be argued that a food product would never decay beyond marketability so long as some market, even a non-food or nonhuman market, existed for the product. Such an interpretation, however, would directly contradict the legislature’s intention as it would imperil claims even of Texas grapefruit or onion growers, if their product had any residual “marketability” following a trumped-up product scare.
The district court’s reasoning mandates that whether an agricultural or aquaculture product falls within the Act is a significant threshold factual issue in each case. In other words, under the district court’s interpretation, a producer or distributor would be required to prove — to establish liability — that his product decayed beyond marketability in a limited period of time. The appellees seize upon this requirement, citing the “mere” 11% decrease in market price for fed cattle following the “Dangerous Food” program and the lack of evidence establishing that these cattlemen’s products went unsold at market. Their evidence persuaded the district court that the cattlemen should be barred from recovery under the Act.
This interpretation of the statute is irreconcilable with the legislature’s purpose. Food disparagement acts, or “Veggie Libel Laws,” are designed to prevent false information from flooding and then destroying the market for a perishable food product. See Timur Kuran & Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 Stan. L.Rev. 683, 749-51 (1999).2 Once a product falls within the definition of a “perishable food product,” that product is protected. The definition of perishable foods distinguishes the direct products of agriculture and aquaculture, broadly speaking, from highly processed foods. The legislature clearly intended to differentiate between agribusinesses that produce “fresh” food products from, say, the makers of biscuit mixes or lasagne as the objects of statutory protection. Defining the products of agriculture should be easy in most instances and should put publishers as well as producers on notice of its scope. The district court’s requirement of a fact-intensive inquiry into the scope of coverage disadvantages all parties.
The Act, as I interpret, it, shields the market for the perishable agricultural or aquaculture food product, not an individual producer’s product. While a producer’s recovery may be limited or its damages nonexistent, the product itself is protected from false statements. Thus, the potential inability of the cattlemen to prove that their cattle decayed beyond marketability is a question of damages for the trier of fact. On the other hand, the scope of the Act and whether cattle constitute a “perishable food product” remain questions of law that the court must determine pursuant to the rules of statutory construction. In its inquiry, a court must determine if a product could decay beyond marketability, as opposed to whether that product did decay. The former is a question of law concerning the scope of the statute, the latter a question of fact concerning damages.
I respectfully differ with the excellent district court judge on this matter.
. Cattle are placed in feedlots for an average of 120-150 days. During this time, their weight increases to the optimal range of 1,100 to 1,150 pounds. Once at this “finish weight,” the cattle must go to market within the next few days or weeks lest their price decline. By comparison, apples — clearly intended to constitute a perishable food product under the Act — may be stored between six and 11 months before they decay beyond mar*691ketability. See Agricultural Research Service, U.S. Dep’t of Agrie., Agricultural Handbook No. 66, "The Commercial Storage of Fruits, Vegetables, and Florist and Nursery Stocks” 31 (1986).
. As defined by Timur and Sunstein, an availability cascade is a "self-reinforcing process of collective belief formation by which an expressed perception triggers a chain reaction that gives the perception increasing plausibility through its rising availability in public discourse.” See Availability Cascades and Risk Regulation, 51 Stan. L.Rev. at 683. The authors explicitly define the behavioral bases for food product disparagement laws, see id. at 705-36, and discuss the impact of the media's dissemination of false, or valid, information and the effect of this circulation on the public. See id. at 734-36.