Barb Determan is the current president of the National Pork Producers Council. She is a pork producer from Early, Iowa.
Q. What is the status of the Campaign for Family Farms' appeal in the national pork checkoff case?A. In February, the government, independent pork producers, the Michigan Pork Producers Association and the National Pork Producers Council reached an agreement that continued the national pork checkoff.
Prior to that (in January), a federal district court granted a temporary restraining order that prevented the dismantling of the checkoff. USDA officials also recognized that then Agriculture Secretary Dan Glickman had ordered a checkoff referendum without the requisite number of valid petitions, along with a significant number of voting irregularities, was illegal.
In May, current Agriculture Secretary Ann Veneman said, " The advice of our lawyers was that we (USDA) were probably going to lose that case. The problem was that the legal flaws with the way the referendum was conducted appeared to be difficult and insurmountable." The settlement agreement required many things, the most significant was the termination of the contractual relationship between the National Pork Board and NPPC. That has already occurred. It also stipulated that in two years, USDA would conduct a poll to determine whether pork producers wished to have another checkoff referendum.
CFF has challenged the settlement agreement's legality, and the case is pending in Federal Court in the Western District of Michigan. Interestingly, in its latest submission to the court, CFF dropped its long-held claim that petitioners had collected signatures from the required minimum 15 percent of pork producers. This means even CFF now admits the law was subverted by the previous agriculture secretary.
Q. When could this case be finalized?
A. All of the legal arguments are before Chief Judge Richard Enslen in the Federal District Court in Western Michigan. The judge may schedule a court hearing before ruling on the case or he could base his decision solely on the documentation and legal briefs already filed. A decision is expected before year's end. However, the losing side would have the option to appeal the decision to a higher court.
Q. Why did NPPC and MPPA ask the court to rule on the pork checkoff's legality?
A. In light of the U.S. Supreme Court's decision in a recent mushroom checkoff case, we believe it is both a pertinent and an efficient use of the court's resources to settle the constitutional question now.
In the case of United States vs. United Foods, the U.S. Supreme Court ruled that the assessments on handlers of fresh mushrooms to pay for generic mushroom advertising violated the First Amendment's free-speech guarantee. Previously, in Glickman vs. Wileman Brothers & Elliott, the high court upheld mandatory assessments on California tree-fruit producers against a First Amendment challenge.
In United Foods, the court reaffirmed Wileman but distinguished it. The United Foods court also failed to reach the question whether the mushroom promotion program could be defended as " government speech," holding that the government had waived that argument.
Our supplemental filing with the court will not delay or slow down the issuance of a decision on the settlement agreement's legality.
Q How will the fate of other checkoff challenges (mushroom, beef) affect that of the pork checkoff?
A While there are several ag-related checkoff programs, each one is distinctly different. Each has been initiated by producers with a specific purpose in mind. For example, the mushroom checkoff involved only promotion, while the national pork checkoff funds promotion, research and education.
Government involvement – a key issue differentiating the two U.S. Supreme Court decisions relating to checkoff programs – also varies widely. NPPC officials believe the national pork checkoff program is constitutional. USDA, which conducts program oversight and approves all checkoff-related funding decisions that NPB makes, also believes the program is constitutional.
" Our position at USDA is that we support these self-help programs," said USDA Under Secretary Marketing and Regulatory Programs William Hawks. " They are intended to allow producers to work to improve markets for their products. We believe the programs are constitutional, and we are going to continue to defend them."
Q. What can producers do to voice their opinions on the checkoff?
A. Any pork producer can communicate directly to the NPB through its Web site at www.porkboard.org/indexNPB.html, or through his or her state pork producer organization.