The U.S. Court of Appeals for the 6th Circuit upheld a lower court decision that ruled illegal the 45¢ per $100 of hog sold assessment that helps to fund the National Pork Producers Council's marketing. That effort includes a $5 million to $10 million campaign from Interpublic Group of Cos.' Campbell Mithun, Chicago.
The three-judge panel said the assessment represents forced speech.
The decision is the second in three months to declare assessments that fund major commodity ad programs unconstitutional. On July 9, another appellate court tossed out the assessment of the Cattlemen's Beef Promotion and Research Board supporting the "Beef: It's what for dinner" campaign from Publicis Groupe's Leo Burnett USA, Chicago. That court is to decide within days whether the beef assessment will continue, pending an expected Justice Department appeal of the case to the U.S. Supreme Court.
An attorney familiar with the issue said the main impact of the Pork case will be to push the Supreme Court to consider the beef industry's appeal and provide guidance.
The Supreme Court has heard a similar case before in which farmers or ranchers argued that they were being unconstitutionally compelled to pay for speech they didn't agree with. In that case, regarding mushrooms, the court drew a distinction between marketing assessments used to set industry standards for size, quality or research and included some advertising and those industry assessments that were used mostly for marketing. The court said the first were legal and the second weren't.
Agriculture Secretary Ann M. Veneman said she was "disappointed" with the decision and would consult with the Department of Justice on an appeal.
Mike Wegner, VP-communications for the Pork Producer's Council, said the group was hopeful another stay would be issued pending any Supreme Court action. "We are disappointed, but this is another step in a long legal process."