Summary of a Recent
Judicial Development in
Checkoff Decisions

Sixth Circuit Declares Pork
Checkoff Unconstitutional

Harrison M. Pittman
Staff Attorney

Summary

The United States Court of Appeals for the Sixth Circuit held that the Pork Checkoff Program, comprised of the Pork Promotion, Research and Consumer Information Act (Pork Act), 7 U.S.C. §§ 4801-4819, and its implementing regulations, was unconstitutional. Michigan Pork Producers Ass'n, Inc. v. Veneman, 348 F.3d 157 (6th Cir. 2003).

Background

The Pork Checkoff Program (Program) required mandatory assessments to be collected from pork producers to fund promotion, research, and consumer information designed to benefit the pork industry. See id. at 159. The majority of funds generated from the mandatory assessments were used to support generic advertising of pork products, although some of the funds were used to promote certain brands of pork products. See id. at 160. Campaign for Family Farms (CFF) challenged the constitutionality of the Program before the United States District Court for the Western District of Michigan. See id. The district court held that the Program was unconstitutional because it violated pork producers' First Amendment rights by compelling them to subsidize speech with which they did not agree. See id. at 161. Michigan Pork Producers, Inc., and the USDA Secretary appealed the district court's decision to the Sixth Circuit. See id.

Arguments

The appellants' first principle argument was that the mandatory assessments constituted governmental speech, and was therefore immune from First Amendment scrutiny, because they subsidized a government program that promoted the government's policy of promoting pork consumption. See id. at 159. The appellants second principle argument was that even if the mandatory assessments were not part of a government program, they did not constitute compelled speech. See id.

Analysis and Holding

The court explained that "the government may dictate the content and even the viewpoint of speech when the government itself is the speaker." Id. (citing Legal Servs. Corp. v. Velazquez, 531 U.S. 541) (stating that "'[V]iewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker. . . .'").

The court held that the Program was not governmental speech because the pork industry's "extensive control over the Pork Act's promotional activities" prevented such a finding, the Program was not funded by general tax revenues, and the government exercised only limited oversight over the Program. Id. (citations omitted). It added that "[i]n sum, the costs and content of the speech in question are almost completely the responsibility of members of the pork industry. The First Amendment does not lie dormant merely because the government acts to consolidate and facilitate speech that is otherwise wholly private." Id. at 162.

Turning to the appellants' second argument, the court recognized that in United States v. United Foods, 533 U.S. 405 (2001), the Supreme Court held that "the Mushroom Act-which provided for mandatory assessments that were used primarily to fund the generic advertising of mushrooms-violated the First Amendment's prohibitions against compelled speech" and that in Glickman v. Wileman Bros. & Elliot, Inc., 521 U.S. 457 (1997) the Supreme Court "held that the Agricultural Marketing Agreement Act-which established mandatory assessments that funded a broad regulatory apparatus that included . . . promotional advertising of California tree fruit-did not constitute unlawful compelled speech." Id. (citation omitted).

After comparing the scheme set forth in the Pork Act with the legislative schemes at issue in United Foods and Glickman, the court held that the Pork Act was unconstitutional under United Foods because it "is nearly identical in purpose, structure, and implementation to the Mushroom Act . . . ." Id. at 162-63. Id. (citing 7 C.F.R. § 4801(b)(3)). In doing so the court stated that the scheme established by the Pork Act, in particular its requirement that none of its provisions be interpreted to "permit or require the imposition of quality standards for pork or pork products; . . . provide for control of the production of pork or pork products; or . . . otherwise limit the right of an individual pork producer to produce pork and pork products," was very different from the scheme upheld in Glickman, that, in addition to funding a promotional campaign, provided for "regulated price, output, and quality, and also authorized joint research and development projects, inspections, and even standardized packaging." Id. at 163 (citations omitted).

The case was decided on Oct. 22, 2003; this summary was posted Feb. 9, 2004.