Federal Farm Promotion (“Check-off”) Programs Page: 3 of 6
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Even as new check-offs are being considered, some producers are vigorously
challenging existing programs. These critics contend that the check-off is a "tax" to fund
activities they would not pay for voluntarily. Numerous producer lawsuits have
questioned the constitutionality of generic check-off programs. Two cases have reached
the U.S. Supreme Court, with quite different results.
In Glickman v. Wileman Brothers and Elliot, Inc., California peach and nectarine
handlers challenged the USDA marketing order, which is not only a promotion program
but also sets quality standards and other marketing rules for those fruits (see footnote on
page 1). The 9th Circuit Court of Appeals had held that the order mandating the
assessments violated the affected parties' First Amendment rights and therefore was
unconstitutional. The Circuit Court stated that such generic advertising had not been
proven necessary or more successful than individual advertising, and also, in effect,
violated the free speech of growers who would prefer to use their money to advertise in
other ways. The government appealed the case to the Supreme Court, which on June 25,
1997, reversed, by a 5-4 vote, the lower court's ruling. It found that the program "should
enjoy the same strong presumption of validity that we accord to other policy judgments
made by Congress. The mere fact that one or more producers 'do not wish to foster'
generic advertising of their product is not a sufficient reason for overriding the judgment
of the majority of market participants, bureaucrats, and legislators who have concluded
that such programs are beneficial."3
However, on June 25, 2001, the Supreme Court, in United States v. United Foods,
Inc., ruled, by a 6-3 vote, that mandatory assessments for the mushroom check-off were
a violation of the First Amendment and therefore are unconstitutional because they force
producers to pay for commercial speech. Upholding a decision by the 6th Circuit Court
of Appeals, the Supreme Court reasoned that the program authorized by the Mushroom
Promotion Act differs fundamentally from that under Glickman. The court said that the
mushroom check-off is a stand-alone program that is not part of a broader regulatory
scheme, as was the marketing order for peaches and nectarines.
In Glickman the mandated assessments for speech were ancillary to a more
comprehensive program restricting marketing autonomy. Here, for all practical
purposes, the advertising itself, far from being ancillary, is the principal object of the
regulatory scheme...Beyond the collection and disbursement of advertising funds there
are no marketing orders that regulate how mushrooms may be produced and sold, no
exemption from the antitrust laws, and nothing preventing individual producers from
making their own marketing decisions.4
Legal experts who have studied the two cases generally agree that the stand-alone
check-offs - i.e., those covered in this report - are more likely to be vulnerable to
challenges than the promotion activities that are 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
3 Glickman v. Wileman Bros. & Elliot, Inc. 521 U.S. 457, 477 (1997).
4 United States v. United Foods, Inc. 533 U.S. 405, 412 (2001).
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Federal Farm Promotion (“Check-off”) Programs, report, July 11, 2002; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc810307/m1/3/: accessed December 18, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.