Growers Challenge Tax: Suit threatens citrus ads

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Funding for the Florida Department of Citrus' advertising program could be in jeopardy if an appellate court upholds a ruling that found a tax levied on growers is a violation of their first amendment rights.

A group of eight growers out of the 13,000 citrus growers in the state of Florida filed a lawsuit earlier this year against the Department, objecting to the generic marketing efforts paid for by them via a box tax. On March 31, a partial summary judgement ruled that the statute indeed violated the plaintiffs' first amendment rights, and on May 14, the ruling court declared a temporary injunction requiring the Department to escrow the box-tax payments of the plaintiffs pending further ruling. On May 16, the Department of Citrus challenged the decision, and the case will head to the court of appeals in the next few months.

Meanwhile, the Department of Citrus' "Best start under the sun" campaign, on which it spent $22 million last year according to a Department spokeswoman, is still on track for 2004.

"The lawsuits haven't affected our strategy, our calendar or-so far-our budgets," said Mike Malone, creative group head for the account at The Richards Group, Dallas. The agency will present new work during a commission meeting in June.

one of many

The Florida case is one of many filed in recent years against agricultural boards, which collectively raise upwards of $700 million annually to research and promote commodity products. Currently, the fates of the Cattlemen's Beef Board and the National Pork Producers Council programs are also in the hands of appeals courts, with decisions as to the constitutionality of their mandatory funding programs expected shortly.

The decisions depend mainly on whether or not a court deems the program in question as one regulated by the government, which would then make advertising and promotion for that program government speech and not subject to the First Amendment.

Wayne Watkinson, a partner at McLeod Watkinson & Miller in Washington, D.C., which represents a handful of agriculture boards including the Cattlemen's Beef Board, said the clear lines of demarcation as to what will be acceptable and what will not in these programs will be decided within a couple of years.

Michael McMahon, head of the litigation department for Akerman Senterfitt, Orlando, which represents the eight growers against the Florida Department of Citrus, said, "the plaintiffs don't want the [Department] to go away. They want to get away from the mentality of the 1930s that underlies the generic marketing concept and address the realities of the global market economy."

contributing: ira teinowitz

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