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High court to decide if beef ads cut constitutional mustard

By The Associated Press
05.24.04

WASHINGTON — The Supreme Court agreed today to decide if the government can force cattle producers to pay for research into cow diseases and for catchy ads promoting "Beef: It's What's for Dinner."

For nearly 20 years beef producers have had to pay fees that are used to promote the industry, but lower courts have ruled that the beef programs — and others like them — violate the First Amendment guarantee of free speech.

Opponents of such fees contend that the mandatory fees infringe on their free-speech rights because they are forced to pay for some marketing campaigns with which they don't agree.

Justices will hear arguments this fall in appeals from the Bush administration (Veneman v. Livestock Marketing Association) and Nebraska cattlemen (Nebraska Cattlemen v. Livestock Marketing Association). Solicitor General Theodore Olson said a lower court ruling against the government threatened successful public-relations campaigns and important research and public education on mad cow disease.

"Especially at a time of increasing public concern about food safety and nutrition issues, there is no justification for the evisceration" of beef and pork programs, Olson told justices in a filing.

The two cases force the high court to return to a question it has visited before: Do mandatory government advertising programs violate the free-speech rights of producers who disagree with how the money is spent?

In 2001, the Court ruled in U.S. v. United Foods that a mandatory campaign for the mushroom industry violated the First Amendment. But in 1997, the high court in Glickman v. Wileman Bros. & Elliott, Inc. allowed the generic ads in the heavily regulated California fruit-tree industry.

In the case the high court has agreed to hear, a panel of the 8th U.S. Circuit Court of Appeals said in 2003 that American beef producers do not have to pay a $1-per-head fee on cattle sold in the United States, which raised about $86 million in 2001. Since 1985, livestock producers have had to pay money into the program for advertising, education and research programs. The money was spent by the Cattlemen's Beef Promotion and Research Board and state beef councils.

In addition, pork producers won a ruling last year in the 6th Circuit in Michigan Pork Producers v. Veneman striking down a similar program — which the Bush administration has also appealed to the Supreme Court. That case is to be settled by the high court after it decides the similar issues in the beef case.

In the cattle case, the government was sued by the Livestock Marketing Association and ranchers who sell cattle in South Dakota and Montana. Their attorney, Philip Olsson, said that government is interfering with the private speech of the ranchers, who disagree with the marketing strategy funded with their money.

The beef program is similar to others in which producers are forced to pay into a common pool, which is then used to orchestrate generic ads. The programs have been controversial, and generally been successful targets in constitutional challenges.

For example, in April the 5th Circuit ruled in Pelts & Skins v. Landreneau that state-imposed fees on Louisiana alligator processors to pay for a marketing campaign for alligator products are unconstitutional. And in February the Philadelphia-based 3rd Circuit ruled in Cochran v. Veneman that the "Got Milk?" dairy promotion — famous for plastering milk mustaches on celebrity faces — violates the free-speech rights of dairy farmers.


Update
Beef producers can be forced to pay for ads
Split decision is defeat for farmers in several agricultural sectors who oppose paying mandatory fees for generic ads. 05.23.05

Previous
8th Circuit won't sign off on beef checkoff
Some ranchers don't want to fund generic 'Beef: It's What's for Dinner' ads, saying they promote all beef, not just American-raised cattle. 07.09.03

Related

6th Circuit: Judge right to toss mandatory pork-ad program

Michigan producers, USDA may appeal three-judge panel's unanimous ruling to full appeals court or to Supreme Court. 10.23.03

3rd Circuit gives heave-ho to 'Got Milk?' campaign
Panel finds government's interest in promoting dairy industry isn't substantial enough to justify infringement on farmers' free-speech rights. 02.25.04

5th Circuit says see you later to generic alligator ads
Unanimous panel sides with hide processor that argued state-sponsored marketing campaign interfered with company's own promotion efforts. 04.06.04

Beef ads prompt 3rd high court review of mandatory marketing
By Tony Mauro Justices have upheld generic promotions for tree fruits, struck down similar mushroom program. 05.25.04

'04 docket includes free-speech cases
By Tony Mauro Cattle ranchers, Oklahoma libertarians, ex-Johnnie Cochran client to get day in Court. 09.29.04

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