Dairy Farmers File Motion for Summary Judgment in Dairy Checkoff Case

On June 6, 2002, dairy farmers Joseph and Brenda Cochran, in conjunction with the Center for Individual Freedom, filed a motion requesting summary judgment in the case challenging the constitutionality of the mandatory dairy promotion program.

The dairy checkoff, responsible for messages such as "Got Milk?" and "Ahh, the power of cheese," is the latest in a growing list of lawsuits against commodity promotion programs in the wake of the U.S. Supreme Court ruling in United States v. United Foods that it violates the First Amendment for the government to compel mushroom producers to pay for "generic" collective advertising.

Arguing the mushroom checkoff is materially indistinguishable from the dairy checkoff, the Cochran family seeks summary judgment declaring the mandatory dairy promotion program unconstitutional.

"In United Foods, the Court framed the issue as follows: ‘The question is whether the government may underwrite and sponsor speech with a certain viewpoint using special subsidies exacted from a designated class of persons, some of whom object to the idea being advanced.’ That mirrors the issue in this case . . . Analysis of the two programs yields the same resolution -- the programs are unconstitutional," wrote attorneys for the Cochrans in the 24-page brief.

Enacted by Congress in 1983, the dairy checkoff is funded by dairy producers through a mandatory 15-cent per hundredweight (roughly 2-cents per gallon) assessment on all milk domestically produced and marketed commercially. Last year, the program collected over $250 million in assessments.

The Cochran family, which is not a member of any association or cooperative marketing agreement, objects to being forced to pay for advertising which promotes all milk as equal. The Cochrans’ farming methods differ markedly from those generally found at other commercial dairies. They feel their grazing system and use of sustainable agriculture in the form of less intensive herd management make for a superior milk, promotes a better use of the Earth’s resources, promotes the environment, and, in sum, provides a healthier animal, product and planet.

In addition, the 15-cent per hundredweight assessment represents a significant portion of the gross profit margin of the Cochran’s dairy operation. In some years the total assessment prevents the Cochrans from implementing essential farm management practices. Failure to implement these practices impairs the Cochrans’ ability to remain competitive in the ever-changing dairy industry.

The motion for summary judgment is the latest action in the suit filed by the Cochrans on April 2, 2002. The case is before Judge James F. McClure, Jr.

in the U.S. District Court, Middle District of Pennsylvania.

To download the motion for summary judgment, click here.

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