The U.S. Supreme Court heard a case yesterday that could have far-reaching affects for agricultural checkoff programs and commodity advertising – including "Pork. The Other White Meat."
A Tennessee-based mushroom grower presented his case to the Supreme Court that the government should not be allowed to force the company to pay for generic ads designed to promote the whole industry. This of course relates to a checkoff program.
According to an Associated Press report, the justices appeared divided on the subject.
United Foods of Bells, Tenn., contend the ads amount to unconstitutional forced speech. Justice Antonin Scalia tended to agree, saying a mushroom grower forced to pay for the program could be a ``free marketer" who is ideologically opposed to collective advertising.
United Foods lawyer Laurence Tribe, made the point that the generic ads did not help the company's brand and in some cases might be deemed offensive, such as a campaign that suggested mushrooms were aphrodisiacs. Tribe argued that the government should not make producers (through mandatory checkoff) to pay for such messages.
Justice Ruth Bader Ginsburg asked Barbara McDowell, the government attorney representing the checkoff advertising program, if growers had the opportunity to express opinions about the ads to officials. McDowell said they did. Ginsburg noted that requiring companies to pay for generic ads is not the same as preventing them from running their own ads – consequently it does not silence a company's free speech.
The Supreme Court heard a similar case in 1997 involving growers of California peaches, plums and nectarines. In that case, the justices ruled that being required to pay for generic ads did not amount to unconstitutional forced speech.
The dispute between United Foods and the government began when the mushroom grower stopped paying the advertising assessment in 1996.
In her arguements, McDowell pointed to very similar marketing programs for the beef, pork and cotton industries.
Tribe was cautious about predicting what other advertising campaigns might be affected by a decision in the mushroom case. ``It's a little
hazardous to predict whether something would fall under the mushroom side of the law or the tree fruit side of the law," Tribe said.
Commodity advertising is increasingly becoming a sore spot among agricultural companies and groups who are creating specialized and branded products. These participants would much rather keep the money contributed through checkoff programs for their own promotional uses. While that makes sense, depending on how a ruling would come down, all checkoff programs could be damaged in the process.
The Supreme Court is expected to present a decision on the case before it recesses in June. Indeed, the ruling could impact pork's checkoff-directed advertising and promotional campaigns. Should the justices rule in favor of such advertising, the issue will likely find its way back in front of the high court sometime in the future.
(You can find more information on this case on the Internet at: Mushroom Council: http://www.mushroomcouncil.com For the appeals court ruling: http://www.uscourts.gov/links.html and click on 6th Circuit.)