Judge hears beef over mandatory ad campaign

By The Associated Press

01.17.02

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ABERDEEN, S.D. — Arguments concluded this week in a federal court case that could shut down the beef checkoff program nationwide.

Some cattlemen are asking U.S. District Judge Charles Kornmann to declare the checkoff unconstitutional because it violates their First Amendment rights.

Since 1985, livestock producers have had to pay a mandatory $1-per-head fee on cattle sold in the United States. Half of that money goes to the Cattlemen's Beef Promotion and Research Board and half to qualified state beef councils.

Testimony in the case began Jan. 14 and ended the next day. Kornmann will issue a ruling later.

The plaintiffs called all seven of the witnesses who testified Jan. 14. For the most part, their testimony was identical. They object to the fact that checkoff fees are used to promote, in part, imported beef. They said that imported beef hurts their businesses by flooding markets and that it is of a lower quality than American beef.

"I think our cattle market is taking it in the shins because of this imported beef we keep promoting," said Johnnie Smith, a livestock producer and co-owner of a sale barn in Fort Pierre.

"Beef is a generic term, and the more you promote beef consumption here in the United States, the more you create a demand for imported beef," said Pat Goggins, the president of the Livestock Marketing Association. Goggins also owns a sale barn and raises cattle in Billings, Mont.

Most of the witnesses who testified Jan. 14 also said they would not be against a checkoff if it promoted American beef. However, they said, up to 20% of beef in the United States is imported. And, they said, much imported ground beef is mixed with American ground beef, thereby diluting its quality.

The main point of contention Jan. 15 was whether the ads and educational materials put out by the Beef Board constitute government speech. If Kornmann rules they do, there is no violation of the First Amendment because, in essence, the government can say whatever it wants.

The only two witnesses called Jan. 15 both supported the checkoff.

Barry Carpenter of the U.S. Department of Agriculture's Agriculture Marketing Service testified that the government controls the Beef Board, approving every project it undertakes. Therefore, according to those who favor the checkoff, Beef Board projects amount to government speech.

Opponents argued that no tax money is used to fund the Beef Board and that, while the board may not be able to spend checkoff money without the USDA's approval, the opposite is also true: The USDA cannot do anything with checkoff money without working with the Beef Board.

Furthermore, opposition lawyers implied that, until this court case, the Beef Board has always claimed to be controlled by cattle producers. Now, the attorneys say, that has changed as the Beef Board is claiming to be controlled by the government.

The checkoff fee, which is also paid on imported cattle, was established as a voluntary fee in the mid-1970s. In 1985, Congress made it mandatory.

Update

Beef Board can't force producers to fund generic ads
Federal judge orders halt to collections for checkoff program, which requires ranchers to pay a $1 per-head fee on cattle sold in the U.S. for beef promotion, research.  06.24.02

Previous

Beef ads challenged after ruling against mushroom promotions
Judge in pending lawsuit asks both sides to review case in light of Supreme Court’s decision, saying ‘advertising for beef may well be much like that for mushrooms.’  07.20.01

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