| Section IV |
On-Line Issues: G |
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Generic Advertising Assessments
Beef, pork, and grapes have more in common with mushrooms than with peaches, plums, and nectarines. The comparison carries constitutional significance because the U.S. Supreme Court upheld generic advertising for peaches, plums, and nectarines in Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 (1997), but invalidated mandatory assessments for a generic mushroom advertising program in U.S. Department of Agriculture v. United Foods, Inc., 533 U.S. 405 (2001).
The difference, according to the High Court, was that the forced advertising of the California tree fruits was part of a larger economic regulatory scheme of marketing orders, while advertising was the principal focus of the mushroom regulatory scheme. “We have not upheld compelled subsidies for speech in the context of a program where the principal object is speech itself,” the Court wrote in United Foods.
The Wileman-United Foods precedent has led to various court decisions over a variety of agricultural products ranging from milk to peanuts. Often individual growers contend that they are being forced to pay for generic advertising that helps their competitors more than themselves.
Three federal courts determined that the assessments for generic advertising mandated in three separate laws were akin to the mushroom law in United Foods. The laws in question were the Beef Promotion and Research Act; the Pork Production, Research, and Consumer Education Act; and a California grape statute called the Ketchum Act.
In Livestock Marketing Association v. U.S. Department of Agriculture, 207 F. Supp. 2d 992 (D.S.D. 2002), a federal district court in South Dakota wrote that “if the First Amendment means anything, it means that compelling speech must be the last and not the first strategy considered by the government.” The court determined that the beef check-off program of the Beef Promotion and Research Act was virtually identical to the mushroom check-off program invalidated in United Foods.
In Michigan Pork Producers v. Campaign for Family Farms, 229 F. Supp. 2d 772 (W.D. Mich. 2002), a federal district court in Michigan invalidated the pork check-off program under the Pork Production, Research, and Consumer Education Act. The judge was particularly critical of forced funding for advertising, opening his opinion with a quote from Thomas Jefferson: “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.”
Judge Richard Alan Enslen was no less harsh in his language than was the third president of the United States: “In short, whether this speech is considered on either philosophical, political or commercial grounds, it involves a kind of outrage which Jefferson loathed. The government has been made tyrannical by forcing men and women to pay for messages they detest. Such a system is at the bottom unconstitutional and rotten.”
Finally, in Delano Farms Co. v. California Table Grape Commission, 2003 U.S. App. LEXIS 1232 (9th Cir. Jan. 27, 2003), the U.S. Court of Appeals for the Ninth Circuit invalidated the Ketchum Act, a state law that established the California Table Grape Commission to promote the sale of fresh grapes. The appeals court easily determined that the regulation of grapes was nowhere near as comprehensive as the scheme for peaches, plums, and nectarines upheld in Wileman.
The two federal district courts also addressed the so-called “government speech” defense. In essence, this defense says that the government has the right to promote its own speech and compel financial contributions for public purposes. The Supreme Court mentioned this defense in United Foods but refused to consider it because the government failed to raise it in the lower courts. The defense was given some credence in Keller v. State Bar of California, 496 U.S. 1 (1990):
If every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed.
The Livestock Marketing court noted that “the question here is essentially whether the government is the speaker or whether the government has instead permitted a private entity to promote its own program and agenda.” The court determined that the beef program was designed to advance the interests of the beef industry, not the government. “Common sense tells us that the government is not ‘speaking’ in encouraging consumers to eat beef,” the court wrote.
The Pork Producers court found the Livestock case persuasive, noting that “what is present here is a self-help program for pork producers” and that “you cannot make a silk purse from a sow’s ear.” At least one of the federal district court decisions has already been appealed. Observers were expecting more developments in this area of the law, and particularly the “government speech” defense, in 2003.
--David L. Hudson, Jr.
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