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Texas Agriculture Archive

June 4, 2004

Supreme Court to hear
Beef Checkoff case

By Mike Barnett

The U.S. Supreme Court recently announced its decision to hear an appeal of an 8th Circuit Appellate Court ruling that found the federal Beef Promotion and Research Act— more commonly known as the beef checkoff—unconstitutional.

"This is an issue that needs to be decided not only for the beef industry, but for all commodity checkoff programs as well," said Joe Maley, Texas Farm Bureau organization director. "Farm Bureau believes in the merits of the checkoff and believes pro-checkoff arguments will ultimately prevail."

The decision to hear the case will allow the beef checkoff program to continue business as usual throughout the proceedings. The final Supreme Court decision is expected in the first half of 2005.

The beef checkoff was created by Congress by the 1985 Farm Bill and approved by 79 percent of U.S. beef producers in a 1988 referendum. The $1-per-head collected on all cattle sold goes toward beef promotion, research and consumer education.

Recent producer market research conducted by an independent firm indicates that nearly 70 percent of beef producers support the current beef checkoff program. Bob Stallman, president of the American Farm Bureau Federation, said the beef checkoff is an important program for America's beef producers.

"Farm Bureau supports the U.S. beef checkoff, as administered by the Agriculture Department, and the many initiatives it funds to reach American consumers," he said in a statement released May 24. "The U.S. cattle industry and our economy as a whole have greatly benefited from the beef checkoff."

The American Farm Bureau recently joined an amicus brief urging the Supreme Court to hear the case. That "Friend of the Court" brief, spearheaded by the Texas Farm Bureau and backed by nine other state Farm Bureaus and several other organizations, included a number of Texas cattle organizations.

The legal challenge to the beef checkoff's constitutionality was raised by the Livestock Marketing Association, the Western Organization of Resource Councils and individual producers. The Justice Department and USDA are defending the program.

The case hinges on the question of whether mandatory government advertising programs like the 1985 Beef Promotion and Research Act violate the free-speech rights of producers who disagree with how the money is spent.

Maley said pro-checkoff arguments will focus on government speech versus freedom of speech. Julia Anna Potts, general counsel for the American Farm Bureau Federation, agrees, saying it's AFBF's argument that the Supreme Court has never addressed whether the "government speech doctrine" applies to an agricultural marketing program administered by the Agriculture Department.

"When it comes to the checkoff program, USDA is the entity that is speaking," she said. "Because the government is entitled to say what it wants, the beef checkoff is not subject to First Amendment scrutiny."

Maley said a favorable ruling by the Supreme Court is important to Texas producers.

"Our leadership and our membership have consistently supported the self-help aspect of checkoff programs," he said. "Who is more interested in promoting a product than the people who make a living producing the product?"

The Supreme Court ruling could have an impact on other marketing programs run by USDA, including the pork checkoff program. That program has also been ruled unconstitutional by lower courts on First Amendment grounds.