Raising brands

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Down on the farm, they're still restless about commodity advertising, and for the second time in five years the U.S. Supreme Court has agreed to step in to try to settle the fracas. Maybe this time the court will get it right.

In 1997, a divided Supreme Court in a 5-4 ruling sided with agricultural groups that like generic commodity promotional programs, and against dissenting agrimarketers that fought against being forced to help pay for them. Under an "everybody-in" policy administered by the U.S. Department of Agriculture, when a majority of growers in a commodity group votes to fund a generic promotional program, everyone, including the dissenters, is obligated to pay. Uncle Sam serves as the collection agent, and the money can mount up: $600 million across 29 commodity promotion programs by one recent count.

The 1997 case involved a California tree fruit promotion program. Now comes mushroom marketer United Foods from Tennessee, which convinced a U.S. circuit court of appeals that it cannot be compelled to help finance a generic mushroom promotion program because mushroom growers, unlike California tree fruit growers, have no extensive history of government intervention in their market.

This sounds like legalistic hair-splitting. Opponents of the programs argue their First Amendment advertising rights are infringed when government power is used to force them to finance generic advertising when they prefer to use their marketing dollars to build their own brands. They make a good point.

When the California tree fruit case was under Supreme Court review, we said this sort of government-compelled "commercial speech" would be bizarre if it were any business other than agriculture. Perhaps this time around the court will see that agribusiness is not so different after all, and that there should be some mechanism to let businesses opt out from generic marketing programs if they want to grow brands instead.

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