Summary of a Recent
Judicial
Development in
Checkoff Programs
Court Strikes Down As-Applied Challenge
of the Cotton Checkoff Program
Amy K. MillerNational AgLaw Center Graduate Assistant
In Cricket Hosiery, Inc. v. U.S., 429 F.Supp.2d 1338 (Ct. Int'l Trade, 2006), the Court of International Trade considered whether the Cotton Research and Promotion Act of 1966, as amended, 7 U.S.C. § 2101 et seq. (2000) ("Cotton Act") and the regulations implementing the Cotton Act, 7 C.F.R. § 1205 et seq. (2003) ("Cotton Order") as applied, violated their constitutional rights of free speech and free association of plaintiffs, domestic importers of cotton and cotton products.
The court first noted that in Johanns v. Livestock Marketing Association, 125 S.Ct. 2055 (2005), the Supreme Court stated that an as-applied challenge to an agricultural program such as cotton checkoff might be sustained if the individual cotton advertisements were attributed to the importers. See id. at 1348. Pursuant to the Cotton Act, Cotton Incorporated ("Cotton Inc.") expressly represented the interests of producers and importers by carrying out research and promotional activities funded by tax assessments paid on imports. Id. at 1347. Each of Cotton Inc.'s activities featured the corporate name and the Seal of Cotton logo, "a cotton ball with the word cotton on it." Id. at 1347-48. The importers alleged that they were compelled to speak in violation of the First Amendment because promotional messages created pursuant to the Cotton Act were both offensive and directly attributable to them through the Seal of Cotton logo. Id.
The Court of International Trade concluded that neither the existence of Cotton Inc. nor the Seal of Cotton amounted to offensive government speech that would violate the First Amendment rights of any particular cotton importer. Id. at 1348. The court further noted that the importers failed to allege any facts establishing the existence of any promotional messages that could be directly attributed to them as individuals. Id. In light of the fact that the importers failed to establish "any specific promotional messages created pursuant to the Cotton Act that infring[ed] upon their individual First Amendment rights," the court dismissed the as-applied challenge for failure to state a claim upon which relief could be granted." Id.
The case was decided on April 24, 2006; this summary was posted Nov. 27, 2006.