Dairy industry has got to fund 'Got Milk?' campaign

The Associated Press

01.10.00

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WASHINGTON — The Supreme Court today turned away a challenge by some dairy farmers who objected to funding ads showing famous people with milk mustaches asking "Got Milk?"

The justices, without comment, rejected an appeal in which the dairy farmers challenged the government's authority to force them to finance the generic ads aimed at boosting the entire industry.

Two years ago the nation's highest court upheld a government program requiring growers and shippers of California peaches, plums and nectarines to help pay for a generic advertising campaign for those fruits.

That 5-4 ruling in Glickman v. Wileman Bros. & Elliott, Inc. said that being forced to pay for generic ads does not amount to unconstitutional "forced speech." Many experts said at the time that the decision's rationale would extend to other generic-ad campaigns as well, such as those for dairy products, pork and eggs.

A federal appeals court last March relied heavily on the 1997 ruling when it threw out the dairy farmers' challenge to the program that, since 1984, has required them to subsidize generic ads. Dairy farmers and other milk producers are assessed about $250 million a year for the popular ads.

The challenge to that mandatory assessment had come in a 1996 lawsuit that alleged violations of speech and associational rights.

"Silence is as much speech as speech itself," lawyers for the dairy farmers said.

The dairy farmers say they are being forced to spend about 1% of their gross, an amount that can exceed their net income. They called the assessment "a tax rate that would rankle almost anyone."

The appeal acted on today in Nature's Dairy v. Glickman sought to draw a distinction between the government program for the fruit industry and the dairy industry program. It said the marketing order at issue in the 1997 case comprehensively regulated the affected commodities, but that the dairy industry marketing order issued by the Department of Agriculture "deals only with promotion, research and nutrition education programs."

Justice Department lawyers urged the court to reject the appeal, calling the distinction it raised "factually and legally untenable."