031053 Pork Promotion Is Reeling After Ruling

Washington -- Central Valley hog farmers are getting a crash course in the First Amendment.

They have little choice. As a new federal appellate court decision shows, agricultural promotion programs are more vulnerable than ever to the legal chopping block. These include, most recently, a national pork program struck down by a federal appeals court.

"(Farmers) are worried about this, because they find the program to be extremely beneficial," said Lesa Eidman, executive director of the Sacramento-based California Pork Producers Association. "Although California is not one of the biggest pork-producing states, it is one of the biggest pork-consuming states."

And that means a potentially big audience for the industry's message that pork is "the other white meat." Industry fees, including more than $103,000 paid by California pork producers last year, fund the ads and other elements in a $57 million-a-year research-and-promotion program.

Overseeing the program is a 15-member National Pork Board that includes Manteca hog farmer William Scott Long. Long is the vice president and owner-operator of Long Ranch Inc., an operation that moves about 4,000 swine a year from litter to slaughterhouse.

These industry leaders, and the farmers they represent, now confront a constitutional and political riddle.

On Wednesday, the 6th U.S. Circuit Court of Appeals struck down the pork promotion program. The three-judge

panel, based in Ohio, ruled unanimously that forcing farmers to pay fees for advertising violated the First Amendment's free-speech guarantees.

"The Pork Act does not directly limit the ability of pork producers to express a message, (but) it compels them to express a message with which they do not agree," Judge R. Guy Cole noted for the appellate panel.

The 6th Circuit's reasoning tracked closely a 2001 Supreme Court decision striking down mandatory fees used to fund mushroom advertising. The basic idea is that the First Amendment protects the right to say nothing as well as the right to say almost anything.

Case helps other ag program challenges

The latest ruling thus emboldens the farmers who have been combating agricultural promotion programs covering beef, dairy, raisins, apples, cherries, honey, dates and more. Already, Fresno-area farmers fighting a table grape promotion program have cited the new pork decision as support for their own cause.

"Every case we win is helpful," Fresno attorney Brian Leighton said Friday.

Leighton is representing dissident table grape growers as well as a number of the other promotion program challenges. Some, like the pork promotion and table grape cases, are played out in federal court. Others, like one that overturned the Washington Apple Commission's mandatory fees earlier this year, are state cases. Many take years to bear fruit.

"I've been battling compulsory advertising for 18 years, and I'm willing to go another 18 if that's what it takes," Fresno County farmer Dan Gerawan said.

Two cases set standard for all others

Gerawan took one challenge all the way to the Supreme Court. He lost in 1997 on a 5-4 decision in which justices upheld the promotion program for nectarines, plums and peaches as part of a heavily regulated market. Three years later, the court in a 6-3 decision struck down the promotion program for mushrooms. The justices reasoned that mushrooms, unlike tree fruit, are produced with much less government intervention.

These cases are now the test against which other programs are compared.

"The constitutionality of the Pork Act turns on whether pork is more like mushrooms or more like peaches," the 6th Circuit noted.

Though it might yet be appealed to the Supreme Court, the 6th Circuit's opinion is significant for several reasons. One is that the decision dashes the federal government's latest legal theory.

The Justice Department has started maintaining that the agricultural promotions really amount to the government itself speaking, and therefore should be given more leeway.

Attorneys for the California Table Grape Commission raised similar arguments in the past week, before U.S. District Judge Oliver Wanger in Fresno. Leighton was able to retort with the 6th Circuit Court's rejection of this line of reasoning.

"The First Amendment does not lie dormant merely because the government acts to consolidate and facilitate speech that is otherwise wholly private," the appellate panel said.

The appellate panel noted "the pork industry's extensive control over the promotional activities prevents their attribution to the government." The judges further observed that only one Agriculture Department employee oversees the National Pork Board, and that the advertisements are all funded and drafted by the private group -- circumstances very similar to those facing other agricultural promotion programs.

The decision also is significant because it strikes down the entire National Pork Board on the grounds that the board's fundamental purpose is to promote pork products, and therefore it is impossible to sever some elements and save the rest.

For now, the pork board is still operating while appeals are weighed. The Bush administration has 40 days or so to decide on an appeal, though one is likely.

"USDA regards such programs, when properly administered, as effective tools for market enhancement," Agriculture Secretary Ann Veneman said in a prepared statement.

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