Federal Farm Promotion (“Check-Off”) Programs Page: 4 of 6
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Legal experts who have studied the two cases generally agree that stand-alone check-
offs (those covered in this report) are likely more vulnerable to challenges than promotion
that is part of a marketing order authorized by the Agricultural Marketing Agreement Act
of 1937. However, these experts also conclude that the Supreme Court did not
specifically prescribe what level of regulation is needed to provide protection against such
challenges. Another issue not addressed by the Supreme Court's mushroom ruling was
whether the speech compelled under the check-offs could be deemed "government
speech," which might be more likely to pass Constitutional muster, these experts noted.
The 2001 Supreme Court decision has influenced other lawsuits. On June 21, 2002,
a U.S. District Court in South Dakota ruled, in Livestock Marketing Association v. United
States Department ofAgriculture, that the national beef check-off also violates the First
Amendment by forcing producers "to pay, in part, for speech to which the plaintiffs
object." The court further ruled that the generic advertising conducted under the Beef
Promotion and Research Act and the ensuing Beef Order is not government speech. On
October 17, 2003, the 8th Circuit Court of Appeals announced that it would not reconsider
the District court's ruling.
In another case, on October 25, 2002, a federal judge ruled, in Michigan Pork
Producers v. Campaign for Family Farms v. Ann Veneman, that the pork check-off also
is unconstitutional because it violates complainants' rights of free speech and association.
The judge made reference to the United Foods decision. On October 22, 2003, a three-
judge panel of the Sixth Circuit Court of Appeals agreed with the lower court's ruling.
However, on November 1, 2002, a district judge in Montana ruled, in Jeanne Charter and
Steve Charter v. USDA, that the speech compelled under the beef check-off law
"constitutes support for government speech" and "does not violate the rights of free
speech or association." The U.S. Justice Department, defending the beef and pork check-
offs, has asked the U.S. Supreme Court to consider both the South Dakota and Michigan
cases. Ultimately, Congress might be asked to re-examine their statutory basis.'
Producer Referendums
Dissident industry groups also have worked outside of the courts, usually by seeking
producer referendums where they hope to win enough votes to terminate the programs.
Most of the current check-offs contain provisions enabling USDA, the promotion boards
and/or a minority of producers to petition for a vote on whether to terminate the program.
The 1996 farm law providing USDA with standing check-off authority permits new
programs to start with either delayed or prior referendums, but they also must have
periodic referendums in later years to test continued support.
Legislation creating the dairy, beef, and pork programs in the 1980s stipulated that
they were to operate for a prescribed period before referendums on whether to continue
6More analysis of the check-offs is in the July-August 2001 and September-October 2003 issues
of The Agricultural Law Letter published (at [http://www.agriculturelaw.com]) by the law office
of McLeod, Watkinson, & Miller, which has assisted groups to establish check-offs; and in
Promotion Checkoffs, Why So Controversial? The Evolution of Generic Advertising Battles
(September 2001) by John M. Crespi, Cornell University National Institute for Commodity
Promotion Research and Evaluation.
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Becker, Geoffrey S. Federal Farm Promotion (“Check-Off”) Programs, report, March 25, 2004; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc810099/m1/4/?q=95-353: accessed April 18, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.