Summary of a Recent
Judicial
Development in
Checkoff Programs
Growers Challenge Constitutionality of California
Plum Marketing Program
Kurt B. OlsonNational AgLaw Center Graduate Assistant
In Gerawan Farming, Inc. v. A.G. Kawamura, 90 P.3d 1179, 14 Cal. Rptr. 3d 14 (Cal. 2004), the Supreme Court of California decided the generic advertisements of the California Plum Marketing Program (1) were part of a larger regulatory scheme and (2) should be subject to the Central Hudson test. The court remanded the case for further fact-finding in accordance with this test and so the lower court would determine whether the advertisements are government speech.
The plum producers in this case had developed their own brand of plums and disagreed with the California Plum Marketing Program's advertising campaign promoting plums as a generic commodity. See id. at 1183. The producers argued their First Amendment rights were violated because the advertising campaign is funded by mandatory assessments on all plum producers, forcing producers to support speech they do not necessarily agree with. See id. The producers further argued that because 55% of the funds collected by the program are used to fund the generic advertising, the main purpose of the program is the advertising itself, bringing it in line with the decision in United Foods, Inc. v. United States, 533 U.S. 405 (2001), where the United States Supreme Court held generic mushroom advertising violated producers' First Amendment rights when the only purpose of the program was to generate funds for the advertising campaign. See id. at 1190.
Because the California Plum Marketing Program also has provisions for inspections and the implementation of quality standards, the Supreme Court of California decided the plum advertisements were part of a larger regulatory scheme, thus it "crosses the United Foods threshold." Id. at 1191. The court continued its analysis by applying the test set out in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980): "(1) ‘whether the expression is protected by the First Amendment,' which means that the expression ‘at least must concern lawful activity and not be misleading'; (2) ‘whether the asserted governmental interest is substantial'; if yes to both, then (3) ‘whether the regulation directly advances the governmental interest asserted'; and (4) ‘whether it is not more extensive than is necessary to serve that interest.'" Id. at 1192 (citations omitted). The court ultimately remanded the case to the district court for determination of facts related to the Central Hudson test. Id. at 1194.
The court also remanded for more fact-finding to determine whether the advertising could be considered government speech. See id. at 1196.
The case was decided on June 3, 2004; this summary was posted Oct. 25, 2005.