Checkoff, requiring mandatory beef promotion, including messages
such as: "Beef. Its Whats for Dinner,"
Checkoff Declared Unconstitutional
In a case with
broad implications for the nations agricultural commodity
promotion programs, a federal judge in South Dakota on June 21 struck
down the federal Beef Promotion and Research Act, which is responsible
for the beef checkoff and messages such as: "Beef. Its
Whats for Dinner."
Marketing Association v. USDA, U.S. District Judge Charles Kornmann
ruled: "The beef checkoff is unconstitutional in violation
of the First Amendment because it requires plaintiffs to pay, in
part, for speech to which the plaintiffs object."
has given the U.S. Department of Agriculture (USDA) and the Cattlemens
Beef Board (CBB) until July 15 to finish collecting beef checkoff
funds. After that date, the USDA and CBB are barred from any further
collection of checkoff funds in order to "wind down" the
program. In addition, the defendants are permanently enjoined from
using any existing checkoff funds for influencing government action
to preserve the program.
The beef checkoff,
which raises more than $85 million annually, is paid for by a mandatory
assessment on beef and dairy producers of $1 per head of cattle
sold. Authorized by Congress in 1985, the program is overseen by
the USDA, and run by the CBB.
stems from the Livestock Marketing Associations (LMA) efforts
in 1998 to obtain a referendum on the continuation of the beef checkoff.
Despite the LMA having collected the required number of signatures
on petitions, the USDA failed to validate the signatures and schedule
a referendum vote. The LMA and the Western Organization of Resource
Councils filed suit seeking immediate USDA action on the petitions
and a refund to beef producers of more than $10 million in checkoff
funds it claims were used improperly for lobbying activities since
U.S. Supreme Courts June 25, 2001 ruling in United States
v. United Foods that the mushroom checkoff violates the First
Amendment rights of mushroom growers, the LMA suit was expanded
to include a similar constitutional challenge.
checkoff is, in all material respects, identical to the mushroom
checkoff," wrote Judge Kornmann in his 21-page decision. "If
the First Amendment means anything, it means that compelling speech
must be the last and not the first strategy considered by the government."
the weakness of its arguments in the wake of United Foods,
the government relied heavily in this case on the novel argument
that checkoffs may be constitutional if construed as an extension
of the governments own speech. Judge Kornmann, in rejecting
that notion, wrote: "The so-called government speech
doctrine is not so much a doctrine as it is an evolving concept....The
generic advertising program funded by the beef checkoff is not government
speech and is therefore not excepted from First Amendment challenge....."
A separate ruling
on the constitutionality of the beef checkoff is expected soon in
a case pending in U.S. District Court in Billings, Montana. In Charter
v. USDA, independent Montana cattle ranchers Steve and Jeanne
Charter, in conjunction with the Center for Individual Freedom,
seek to freeze all existing beef checkoff assets and establish an
escrow account for those assets and for future checkoff payments,
pending the outcome of the case. The suit also seeks a refund of
past compelled payments, should the program be declared unconstitutional.
a lawsuit challenging the constitutionality of the dairy checkoff
is underway in U.S. District Court in Scranton, Pennsylvania. The
suit, filed on behalf of Joe and Brenda Cochran, with assistance
from the Center for Individual Freedom, seeks to enjoin the USDA
and the Dairy Promotion Board from collecting dairy checkoff assessments,
or using existing checkoff funds without prior consent of those
assessed, pending a declaratory judgment in the case.
read the Centers statement on the LMA case, click
read the legal briefs in Charter v. USDA, challenging the
beef checkoff, click
read the legal briefs in Cochran v. Veneman, challenging
the dairy checkoff, click
June 25, 2002]