Pork producers have now voted down the checkoff program by popular vote and won a court ruling declaring the program unconstitutional.

Pork: The Other Unconstitutional Checkoff

A federal judge in Michigan declared another of the nation's agricultural commodity promotion programs unconstitutional in an order issued October 25.  The order struck down portions of the federal Pork Production, Research and Consumer Education Act of 1985, which created the pork checkoff program authorizing the collection of mandatory assessments on pork producers that pay for generic advertising, such as the campaign touting "Pork: The Other White Meat."

In Michigan Pork Producers v. Campaign for Family Farms, Federal District Judge Richard Alan Enslen declared the pork checkoff "unconstitutional since it violates [pork producers'] rights of free speech and association."

Judge Enslen's order gives the U.S. Department of Agriculture (USDA) and proponents of the pork checkoff 30 days in which to seek a stay from the U.S. Court of Appeals for the 6th Circuit. After that date, absent appellate intervention, the order enjoins the collection of pork checkoff assessments and the continued operation of the program.

The decision spells further trouble for the nation's embattled agricultural commodity promotion programs.  Last year, the U.S. Supreme Court ruled in United States v. United Foods that the mushroom checkoff violates the First Amendment rights of mushroom growers, stating "[i]f the First Amendment means anything, it means that compelling speech must be the last and not the first strategy considered by the government."  Following that decision, a federal judge in South Dakota struck down the Beef Act, responsible for the beef checkoff and messages such as: "Beef. It's What's for Dinner."

As has been the case with both the mushroom and beef checkoffs, the government is not likely to throw in the towel over the latest decision from Judge Enslen.

Despite the U.S. Supreme Court's ruling on the matter, mushroom producer United Foods, Inc., was forced back into court by the government to once again argue the constitutionality of the Mushroom Act based on a novel "government speech" theory, now rejected by two courts in the beef and pork cases.  And, the government has requested and been granted a stay of the beef decision pending appeal, meaning "unconstitutional" checkoff assessments can continue to be collected from the nation's beef producers.

As for the pork checkoff, it was originally subject to termination after a majority of pork producers voted against the program in a nationwide referendum held in 2000.  Nevertheless, checkoff proponents prevented the democratic termination of the program by filing a lawsuit contesting the outcome of the vote.

Anne Veneman, who succeeded Dan Glickman as Secretary of the USDA shortly after the suit was filed, sought to settle the issue by agreeing to more stringent oversight of the checkoff in return for allowing the program to continue.  However, the lawsuit proceeded as opponents of the program filed claims contesting the Secretary's ability to override the referendum and challenging the program's constitutionality under the First Amendment based on the United Foods decision.

Pork producers have now voted down the checkoff program by popular vote and won a court ruling declaring the program unconstitutional.  However, the twelve largest commodity promotion boards, of which pork is one, collect more than $700 million per year of farmers' hard-earned money for so-called "generic" collective advertising programs.  Unfortunately, that seems to be far too much money for the government to ever accede to the producers', or the courts', opinions on the matter.

Look for checkoff proponents and the USDA to seek a stay, preserving nearly $50 million in annual pork checkoff assessments for as long as possible, while they appeal Judge Enslen's order.

A separate ruling on the constitutionality of the beef checkoff is expected soon in a case filed in the federal district court in Billings, Montana, by independent cattle ranchers Steve and Jeanne Charter, in conjunction with the Center for Individual Freedom.  In addition, a lawsuit challenging the constitutionality of the dairy checkoff, filed on behalf of Joe and Brenda Cochran, with assistance from the Center for Individual Freedom, is underway in the federal district court in Scranton, Pennsylvania.

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