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Rulings mixed for checkoff programs

Recent conflicting court rulings are allowing the beef checkoff program to continue during its appeal to the Supreme Court, while the pork checkoff program has again been ruled unconstitutional.

The U.S. Court of Appeals for the Eighth Circuit in Denver on Oct. 30 approved a request that will allow the beef checkoff program to continue while the U.S. Department of Justice asks the Supreme Court to review the case.

“During the ongoing appeal process, the Beef Board will continue — as it has throughout the course of this litigation — to work to strengthen the position of beef in the marketplace and expand uses for beef and beef products,” says Andy Tucker, Beef Board chairman and Florida cattleman. “Demand for our product continues on a strong upward trend this year, and we continue to develop programs to maintain that growth long-term.”

With the stay in place until Jan. 27, 2004, or until a Supreme Court ruling, producers must continue to pay the mandatory $1-per-head checkoff each time a bovine animal is sold as the case moves forward toward the Supreme Court.

The injunction called for ending the checkoff program on the grounds that it violates some cattle producers' First Amendment rights by forcing them to pay for beef promotion messages with which they do not agree.

Specifically, plaintiffs have complained that the checkoff promotes beef, in general, rather than just beef produced in the United States. Importers also pay the checkoff assessment.

A court of appeals ruling in July agreed, declaring the beef checkoff program unconstitutional. In its ruling, the court said that making beef producers pay for a marketing message they may not agree with is a type of “government interference with private speech,” and therefore, a violation of their First Amendment rights.

The Oct. 30 decision extends an earlier stay issued by a South Dakota district judge in June 2002.

Fighting to keep the beef checkoff program are the USDA, the U.S. Department of Justice, the Cattlemen's Beef Promotion and Research Board, and Nebraska Cattlemen.

According to the Cattlemen's Beef Promotion and Research Board, independent surveys conducted annually since the launch of the beef checkoff 17 years ago confirm that producers continue to support the program. In the latest survey, released in July 2003, about 63 percent of producers said they approve of the Beef Checkoff Program.

The beef checkoff program was established as part of the 1985 farm bill. States retain up to 50 cents of the dollar and forward the other 50 cents per head to the Cattlemen's Beef Promotion and Research Board, which administers the national checkoff program, subject to USDA approval.

The checkoff assessment became mandatory when the program was approved by 79 percent of producers in a 1988 national referendum vote. Checkoff revenues may be used for promotion, education and research programs to improve the marketing climate for beef.

Meanwhile the pork checkoff program, operating under the auspices of the Pork Promotion, Research and Consumer Information Act, has again been ruled unconstitutional.

An Oct. 22 decision by the Sixth Circuit Court of Appeals agreed with an earlier federal judge's ruling that the mandatory pork checkoff program is unconstitutional and should end.

The court disagreed with program proponents that say the pork checkoff is a government program and should be protected as such. Instead, the court said the program “compels producers to express a message with which they do not agree.”

Shortly after the ruling was announced, Secretary Ann M. Veneman said, “I am disappointed that the U.S. Court of Appeals did not overturn the lower court's ruling. USDA regards such programs, when properly administered, as effective tools for market enhancement. We are consulting with the U.S. Department of Justice to determine the next steps regarding this matter.”

However, not everyone agrees with Veneman.

“This is a huge victory for independent family farmers. The pork checkoff has forced family farmers to pay into a program that supports corporate concentration, industrialization and the factory farm system of livestock production, which drives family farmers out of business. The end of the checkoff is long overdue,” says Rich Smith, a Wilmont, Minn., hog farmer and spokesperson for the Campaign for Family Farms.

The pork checkoff program, which began in 1986, generates an estimated $45 million to $50 million each year for research and promotion activities undertaken by the National Pork Board.

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