Online Exclusive: Marketing News

SUPREME COURT SENDS COMMODITY AD CASES TO LOWER COURTS

Pork and Dairy Farmers Scramble to Find Loopholes in Last Week's Ruling

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WASHINGTON (AdAge.com) -- A week after the Supreme Court said an assessment on beef producers to support ad campaigns represents government speech and can’t be easily challenged as violating the First Amendment, the justices have sent three challenges of other commodity and farm ad programs back to lower courts.
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Got Milk?
In an order today, the court remanded one case involving advertising for alligator-skin products and two cases for well-known ad campaigns, that of the pork producers and “The other white meat” effort and the milk checkoff that funds the “Got milk?” ads, back to lower courts to reconsider in light of last week’s ruling.

While it would appear that the challenges from the likes of dairy farmers and hog farmers are now most likely to be dismissed, the Supreme Court in its opinion on the beef industry campaign ("Beef. It's what's for dinner") made clear that among the reasons that it ruled that campaign represented government speech was that it was overseen by the Secretary of Agriculture and no evidence was presented suggesting consumers viewed the campaign as anything other than government speech.

Up to lower courts
The lower courts will have to resolve whether those same conditions are true regarding the other programs.

Steve Smith, a lawyer for the Institute of Justice, which is representing farmers challenging the milk industry assessment, said the high court left a number of avenues to pursue for his case. He said there is stronger arguments in the milk campaign that the long-running ad effort isn’t from the government, and that the checkoff forces dairy farmers to join dairy associations they don’t want to join, a new issue not raised during the earlier appellate court ruling.

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