Since 1996, grapes grown for wine production have produced bottles aged to perfection, while others have shriveled into raisins.  At the same time, a federal lawsuit over table grapes has wound its way through the courts like a vine.  But late last month, the case produced sour grapes for the California Table Grape Commission when the U.S. Court of Appeals for the 9th Circuit ruled that California's grape checkoff program unconstitutionally violated the free speech rights of growers by compelling them to pay for generic advertising whether they agreed with the promotion or not.

The lawsuit, filed by several grape growers who object to a state law forcing them to pay for generic advertising, is another win for checkoff opponents who maintain that mandatory assessments violate their First Amendment rights to be free to choose when and how to speak about their agricultural products.  The plaintiffs in this case, Delano Farms v. California Table Grape Comm'n, sell table grapes under brand names and high end labels, rather than generic, undifferentiated grapes.

The Ninth Circuit's opinion aptly identifies the struggle faced by many to understand the legal rule to be applied after the U.S. Supreme Court issued conflicting opinions in the checkoff arena.  Judge Kleinfeld wrote that "[c]onstitutional law classes will doubtless enjoy the superficially droll question, 'why does the Constitution prohibit the government from compelling mushroom growers, but allow government to compel nectarine, peach and plum growers, to pay for generic advertising?'"

In 1997, the High Court ruled in Glickman v. Wileman Brothers & Elliott, the tree fruit case, that the First Amendment rights of dissenting growers were not violated because generic advertising was "part of a broader collective enterprise in which their freedom to act independently is already constrained by the regulatory scheme."  Four years later, in United States v. United Foods, Inc., the Court ruled that because there was no such "comprehensive program" for mushrooms, mandating growers to pay for generic advertising violated the First Amendment rights to be free from compelled speech.

While acknowledging that "[d]oubtless many cases will arise that are hard to place on one side or the other of the Glickman-United Foods distinction" the 9th Circuit noted that this is not one of such cases.  Persuaded in part by the fact that the grape scheme, like the one for mushrooms, did not collectivize the industry, and that the table grape case did not involve marketing orders under the same 1937 statute used in Glickman, the panel ruled that the grape growers were "entitled to First Amendment protection against state compulsion to fund generic advertising."

The decision groups grapes with pork, beef, mushrooms and other commodities that have garnered court rulings declaring checkoff programs unconstitutional.

To read more on those cases and the battle over the nation's checkoff programs, please click here.