Mandated Farm Ads Put in Doubt by High Court

Popular ad campaigns for American farm products that have ranged from “Got Milk?” to the California Dancing Raisins singing “I Heard It Through the Grapevine” were put in doubt Monday, when the Supreme Court ruled that growers cannot be forced to pay for these government-authorized ads.

The 6-3 ruling sides with dissident growers who have long complained that the forced funding of generic advertising violates their free-speech rights.

The decision came in the case of a Tennessee company that grows fresh mushrooms (United States vs. United Foods Inc., 00-276). Under a 1990 law, Congress authorized an industry board to collect a one-cent-per-pound fee from growers to promote mushrooms.

Nearly all the money is spent for generic ads.

Speaking for the majority, Justice Anthony M. Kennedy said the 1st Amendment not only protects the right to speak, it also bars “compelled speech.” He cited a World War II ruling that struck down state laws that forced schoolchildren to salute the flag.

Perhaps a “debate about whether a branded mushroom is better than just any mushroom” may sound insignificant, but the principle is the same, Kennedy said. “Compelled funding for advertising” runs squarely into the 1st Amendment, he said.

But the effect of the ruling on other commodities is far from clear.

Four years ago, the justices upheld a marketing program for California tree fruit that required growers of peaches and nectarines to pay for generic ads. The 5-4 ruling in Glickman vs. Wileman Brothers was sharply criticized afterward by 1st Amendment lawyers.

Justices John Paul Stevens and David H. Souter, who had voted to uphold the California ruling, on Monday switched sides and voted to strike down the mushroom promotion program. Monday’s decision did not overturn the 1997 ruling, however.

Not surprisingly, critics and defenders of such marketing campaigns disagreed on what the ruling holds for the future.

“Generic ad programs are basically history,” said Brian Leighton, an attorney from Clovis, Calif., who has been fighting the state and federal programs since 1986. “The vast majority of these programs are like the mushroom program. They pay for advertising, and that violates the 1st Amendment.”

However, Kendall Manock, a Fresno lawyer who represents several farm industry boards, called the ruling narrow and limited.

“The programs still stand. They are involved in promoting trade and opening up markets in China and Mexico,” he said, not just in sponsoring ads.

It is essential that all growers participate in the campaigns, Manock said. “If it were purely voluntary, there would be free riders, and in that case, I don’t think the programs would survive.”

Since the Great Depression, the Agriculture Department has authorized farm cooperatives that help market a particular commodity. In recent years, many of these cooperatives have turned to generic ad campaigns. The largest programs are those involving beef and milk, industry experts say.

The USDA operates more than a dozen marketing programs with a combined budget this fiscal year of about $500 million. The programs encourage consumers to buy fruits, vegetables, meat and dairy products.

Agriculture Secretary Ann M. Veneman strongly supported these programs when she was head of California’s Department of Food and Agriculture, and she said the government was not ready to back away from them.

“Given today’s U.S. Supreme Court decision, . . . the USDA has begun a review of the court’s rulings to determine what actions should be taken,” she said in a statement Monday. “USDA continues to believe that national commodity research and promotion programs offer opportunities to maintain, develop and expand markets for agricultural products both at home and abroad.”

California has its own advertising and marketing programs for farm products. These too are subject to a free-speech challenge from growers who object to the assessments.

The state has 51 co-op ad programs that will spend $140 million this fiscal year on marketing. The three largest are: “It’s the Cheese” ($43 million); “Got Milk?” ($20 million) and the Table Grape Program ($13 million). Other programs promote raisins, beef, wheat, kiwi fruits, cut flowers and strawberries.

“We continue to be encouraged that the high court said there’s no 1st Amendment prohibition when it comes to marketing orders,” said Steve Lyle, public affairs director for the California Department of Food and Agriculture. “We’re bullish on marketing orders.”

Executives at the California Tree Fruit Agreement based in Reedley, Calif., also said they were not troubled by Monday’s ruling. The board administers a $10-million-a-year program that promotes peaches, plums and nectarines.

“We think the case strongly reaffirms out program’s constitutionality,” said Marilyn Dolan, the group’s consumer programs director.

In dissent Monday, Justice Stephen G. Breyer described the mushroom marketing program as a “beneficial form of economic regulation,” not an impingement on free speech. Justices Sandra Day O’Connor and Ruth Bader Ginsburg joined his dissent.

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Savage reported from Washington and Johnson from Orange County.