Federal Farm Promotion (“Check-off”) Programs Page: 4 of 6
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is needed to provide protection against such challenges. Another issue not addressed by
the most recent Supreme Court ruling, these experts noted, was whether the speech
compelled under the check-offs could be deemed "government speech," which was more
likely to pass Constitutional muster.
Since the Court's decision, the Mushroom Council, the producer board that
administers the program, in 2001 reduced the mandatory assessments and diverted their
revenue to non-promotional activities. The Council began soliciting voluntary
contributions to use for generic advertising.
This latest Supreme Court action 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 of Agriculture, 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. It
ordered all beef assessments to cease on July 15, 2002. The U.S. Department of Justice,
on behalf of USDA, was granted a stay of the order by the 8th Circuit Court of Appeals
so that the program can continue while the government appeals the decision.5
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
them could be held. In each of these cases, producers did vote to continue them.
However, producers rejected pecan, lime, and flower programs in delayed referendums.
Proponents of delayed (as opposed to up-front) referendums say the trial period gives
producers experience with the program; opponents contend that they are undemocratic
and allow for, at best, a subjective evaluation of benefits.
The Livestock Marketing Association in 1999 submitted a petition to USDA seeking
a referendum on whether the beef check-off should be discontinued. USDA rejected the
s Other lawsuits against the dairy and pork programs are pending in the courts. Lengthier
discussions of the check-offs' legal aspects can be found in the July-August 2001 issue of The
Agricultural Law Letter published (at www.agriculturelaw.com) by the law office of McLeod,
Watkinson, & Miller, which has assisted groups to establish check-off programs; and in
Promotion Checko s, Why So Controversial? The Evolution of Generic Advertising Battles
(September 2001) by John M. Crespi, available from Cornell University's National Institute for
Commodity Promotion Research and Evaluation.
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Federal Farm Promotion (“Check-off”) Programs, report, July 11, 2002; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc810307/m1/4/: accessed January 17, 2019), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.