Court rulings put mandatory ad campaigns in jeopardy
By The Associated Press
07.02.02
IDAHO FALLS, Idaho — The farmer-funded promotional programs that developed the slogans "Got Milk?" "Pork. The Other White Meat" and "Beef. It's what's for dinner" are in jeopardy following rulings by the U.S. Supreme Court and a federal judge in South Dakota.
Missouri farmer Rhonda Perry said the fact that the programs are not voluntary made her a leader of the campaign to kill the pork checkoff.
"This is not a voluntary program," Perry said. "Whether you agree with it, you have no choice to pay for it, and that's where the problem comes in."
Last year, the U.S. Supreme Court ruled in U.S. v. United Foods that requiring mushroom farmers to pay for promotions violated their First Amendment rights because it forced them to fund speech they opposed.
A South Dakota federal judge on June 21 used that ruling to halt the beef program. The judge ordered the government to stop collecting fees for the program by July 15, but the government is appealing the decision to the 8th U.S. Circuit Court of Appeals. Federal officials hope to continue charging the fees until that appeals court reviews the case.
Beef farmers pay $1 for every head of cattle sold.
Similar cases are pending in the pork and dairy programs, and industry officials point out it takes only one disgruntled producer to get the courts to scrutinize any of the other checkoffs.
Checkoff programs have become increasingly controversial in recent years, as small-scale producers argue that they help processors and large-scale farms while encouraging consumption of foreign-grown food.
Supporters point to studies that conclude the programs have increased demand for the commodities.
"The checkoff allows me to do nationwide advertising and promotion programs that I would never be able to do on an individual basis," said Craig Christenson, an Ogden farmer who is a member of the Des Moines-based National Pork Board in charge of the pork program.
The Bush Administration is fighting to keep the programs, saying they are run by the government, not the farmers who pay for them. That would mean that the ads represent the government's views, rather than the farmers', so producers wouldn't have a First Amendment complaint.
U.S. District Judge Charles Kornmann, ruling in the beef case, rejected the government's argument. He concluded that the program is clearly controlled by producers, rather than the Agriculture Department.
Kornmann also said the beef industry, like mushroom production, is relatively unregulated, an issue that affected the Supreme Court's ruling that the fees on mushroom farms were unfair.
For the pork checkoff, farmers chip in 45 cents for every $100 worth of hogs they sell. Dairy farmers, on the other hand, pay about 2 cents a gallon.
Critics of the pork checkoff want a federal judge in Michigan to strike down that program. A Pennsylvania lawsuit against the dairy program is pending.
Judges in both cases will have to determine how much the industries are regulated and decide if they are similar to the mushroom business.
The Justice Department said in a June 13 filing in the dairy case that milk is one of the most heavily regulated agricultural commodities in existence.
Another lawsuit filed against the beef program in Montana is pending.
Agriculture Secretary Ann Veneman calls the checkoffs "effective tools for market enhancement."
"The beef promotion program, in particular, has helped beef demand to increase and has contributed to increased U.S. beef exports," she said.
Some Idaho producers are worried the potato promotion program they finance could get caught up in the legal debate as well.
The U.S. Potato Board, which runs that commodity's two-cent-per-hundredweight checkoff, is confident the program will survive, not because it is structured differently but because it strives to be responsive to growers.
While there has been turmoil during the past three decades, Chief Executive Tim O'Connor emphasized that it has never escalated into a court battle.
"I was hired as a result of growers, particularly Idaho growers, challenging the board," O'Connor said. "There was a petition, but they did not get enough signatures."
"They brought about change, a new CEO, and a whole new strategy and direction," he said.