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Generic ads get under skin of alligator company

By The Associated Press
07.25.02

NEW ORLEANS — Zachary Casey doesn't raise run-of-the-mill alligators. His gators go on to be the shoes and handbags of the fashion-conscious — buyers of Gucci and Prada — not the average Joe bargain-shopper. And it's a distinction he wants to make clear to the Louisiana Department of Wildlife and Fisheries.

So he's suing the agency.

Casey's Kenner-based alligator processing company, Pelts & Skins LLC, and the Department of Wildlife and Fisheries will pit two U.S. Supreme Court decisions against each other this year when their case is heard by the U.S. District Court in Baton Rouge.

Casey has filed a lawsuit to stop the department from paying for the generic marketing of hides with money received from taxing alligator processors. Citing a 2001 Supreme Court decision, Casey's attorney, Alex Peragine, said that using money collected from required fees to finance advertising that the company may or may not approve of violates First Amendment rights.

But according to department attorney Berwick Duval, a 1997 federal ruling said that it does not violate the Constitution for companies to be required to pay for generic advertising if the marketing is but one part of a broad economic scheme. The generic marketing used by the department is similar to the "Got Milk?" and "Beef, It's What's for Dinner" ads, Duval contends. It promotes a product, but does not differentiate between brands.

In U.S. v. United Foods Inc., the Supreme Court ruled that it was unconstitutional for the Mushroom Promotion, Research and Consumer Information Act to require mushroom handlers to pay fees that were used primarily to finance advertising for mushroom sales.

"That's exactly like this case," Peragine said.

Like United Foods Pelts & Skins argues that it sells a superior product and that by financing advertising that says all alligator hides are the same the company concedes that its product is not special. And ordinary Pelts & Skins' hides are not, Casey said. They are sold to expensive designer fashion labels.

"Generic marketing is a message very inconsistent with Pelts & Skins' message," Peragine said. "Pelts & Skins wants to send the message that it produces a superior brand of alligator hide. (The company) doesn't feel that it should be compelled to support marketing that says that all alligator hides are the same when they are selling a superior product."

The Wildlife and Fisheries Department, however, stakes its argument on a similar Supreme Court case that produced a different result.

The federal court ruling in Glickman v. Wileman Brothers & Elliott determined that the First Amendment rights of California tree fruits processors had not been violated because the fees paid were part of a "larger regulatory marketing scheme."

In accord with that ruling, Phil Bowman, assistant secretary of the department, said that all money collected in taxes from alligator processors goes into a fund that is not used solely for the generic marketing.

Bowman said money from the fund is used to support biologists, technicians and law enforcement agencies used in alligator harvesting and to finance research on alligator conservation, among other things.

"Basically you have two U.S. Supreme Court cases going against one another. It'll just be up to the court," Duval said. A date has not been set for hearing arguments.

Pelts & Skins ships more than 80,000 hides a year, said Peragine, who filed the suit on Casey's behalf in April.

For every hide the company ships, it pays a $4 tax to the Wildlife and Fisheries Department. The money Pelts & Skins has paid in taxes totals 40% of the more than $2 million the department has collected in taxes, Casey said.

The department began collecting the tax in the early 1990s.


Update
Court agrees company got raw deal on alligator-hide advertising
Federal judge sides with Pelts & Skins, rules that mandatory fees paid to Louisiana wildlife department constituted forced commercial speech. 05.14.03

Related

High court won't compel mushroom growers to fund generic ads

United Foods had argued that the government’s mandatory campaign forced the company to pay for ads that benefited competitors. 06.25.01

These dairy farmers fed up with 'Got Milk?' promotion
Supreme Court has produced mixed bag of rulings on mandatory ad campaigns for food producers. 04.04.02

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