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Decision Impacts Beef, Pork, Milk, Cotton and Other Industries

By Published on .

WASHINGTON (AdAge.com) -- The U.S. Supreme Court today ruled that commodity ad programs, specifically the beef industry’s “It’s what for dinner” campaign, are government advertising and therefore not subject to First Amendment protections, rejecting arguments that the programs force farmers and ranchers to pay for speech they don’t agree with.
Photo: AP
The ruling is a blow to beef and other livestock product marketers that sought out of the national advertising programs.
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The 6 to 3 decision overturns a lower court ruling in favor of a cattlemen's association that the programs represented compelled speech and removes a big question mark for the future of the more than $250 million a year spent on ad programs for commodities like oranges, pork, milk and cotton.

Livestock association
Officials and lawyers for the Livestock Marketing Association, which acted for the ranchers, expressed disappointment with the ruling but said there was still a possibility they could pursue the case in lower court.

Laurence Tribe, a Harvard University professor who represented the group, said the association is considering its options.

Still faces challenges
The ruling still leaves the ad programs subject to challenge on non-First Amendment grounds, and farmers and growers can still claim their First Amendment rights have been violated if a particular commodities program isn't clearly structured as a government program.

"It depends on how they [the programs] are structured and the level of government involvement," said Dan Troy, a First Amendment lawyer who is former general counsel for the Food and Drug Administration. He said the decision will make challenges harder to win, and by tying future court decisions to the structure of government regulation make any future decisions about the programs less relevant to private-industry issues.

An earlier Supreme Court decision involving mushroom growers ruled programs in which advertising is a part of an industry regulatory scheme to classify the sizes of products, for instance, was legal while an all-advertising program was illegal.

Cattlemen oppose ad campaign
The case reached the Supreme Court after the Livestock Marketing Association and the Western Organization of Resource Councils had originally challenged a marketing fee of $1 per head of cattle that beef ranchers are required to pay under 1985's Beef Promotion and Research Act. The money goes to the Cattlemen's Beef Promotion and Research Board and raises $80 million a year, about $18 million of which goes to advertising, from Publicis Groupe's Leo Burnett USA, which carries the familiar tagline "Beef. It's what's for dinner."

The U.S. Court of Appeals for the 8th Circuit in July 2003 ruled that collecting money to support the beef industry's campaign violated the constitutional rights of ranchers who didn't want to contribute.

Message prescribed by Congress
Setting aside the lower-court's ruling, Justice Antonin Scalia said the campaign's message was prescribed by Congress and its implementation overseen by the U.S. Department of Agriculture and not by nongovernment entities, even if the beef campaign is labeled as coming from "America's beef producers."

"The message of the promotional campaigns is effectively controlled by the federal government itself," he wrote. "The message set out in the beef promotions is from beginning to end the message established by the federal government."

The Supreme Court, however, remanded the beef industry case to the lower court, where a challenge on non-First Amendment issues asks whether the industry checkoff supports a full program of classification or just advertising.

Identified as a marketing sponsor
The court's minority argued that unless the government clearly identified itself as a marketing sponsor, the message can't be government speech.

"I take the view that if government relies on government-speech doctrine to compel specific groups to fund speech with targeted taxes, it must make itself politically accountable by indicating that the content is actually a government message," Justice David Souter wrote for the minority. "It means nothing that government officials control the message if that fact is never required to be made apparent."

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