A U.S. Federal Appeals Court in Cincinnati ruled yesterday that the national pork checkoff program is unconstitutional in that it violates pork producers' First Amendment rights. Through this action, a three-judge panel of the U.S. 6th Circuit Court reinforced U.S. District Court Judge Richard Enslen's ruling made nearly a year ago in Kalamazoo, Mich.
In his ruling, Enslen also ordered that checkoff collections would end on Nov. 24, 2002. However, USDA was granted a stay, which allowed checkoff collections to continue through the appeals process. That action will remain in place through any remaining appeals.
"I am disappointed that the U.S. Court of Appeals did not overturn the lower court's ruling. USDA regards such programs (checkoff), when properly administered, as effective tools for market enhancement," says USDA Secretary Ann Veneman. "We are consulting with the U.S. Department of Justice to determine the next steps regarding this matter."
The next steps largely remain in the hands of USDA. The agency administers the national pork checkoff and, along with the Michigan Pork Producers Association, has pursued the program's legal defense. They have 45 days to determine whether to take the issue further, which would mean asking the full Circuit Court to hear the case, or take it to the U.S. Supreme Court.
On the other side of the issue is the Campaign for Family Farms, a Missouri-based coalition of groups. It is CFF who sued to end the checkoff following a controversial referendum in 2000 in which U.S. pork producers voted to end the checkoff. That's when USDA and the Michigan pork producers first took the issue to court, with USDA negotiating an agreement that continued checkoff program.
The National Pork Board and the various state pork producers associations receive the lion's share of checkoff funds, although other groups such as the US Meat Export Federation, universities and others do bid for programs. The current assessment rate at 40 cents per $100 value of market hog sold, also has formulas to include contributions from seedstock, feeder pigs, and pork product imports.
The National Pork Producers Council, a separate entity from the National Pork Board, which works on legislative, regulatory and public policy issues for the industry is not associated with the checkoff. "The U.S. 6th Circuit Court panel's ruling that the pork checkoff is unconstitutional has no direct impact on NPPC, which is voluntarily funded by the pork industry," says Jon Caspers, NPPC president.
As outlined in the original Pork Act, that Congress approved in 1985, checkoff funds can only be used for research, promotion and education. It's the promotion part of that act that now haunts the checkoff.
"The District Court properly invalidated the Pork Act in its entirety," said Judge R. Guy Cole, Jr.., in the 6th Court ruling. He pointed specifically to the promotion portion of the act as the basis that it violates the 1st Amendment. "...that its assessment of fees to promote pork is the chief goal of the act..." wrote Cole, "...prevents us from preserving other parts of the statute."
This decision on the pork checkoff mirrors that of the national beef checkoff program, which is actually a step ahead in the legal process. The beef checkoff was recently denied a rehearing by a full six-judge Federal Appeals Court panel. Its only recourse now is to seek a hearing from the U.S. Supreme Court.