Court rules against pork checkoffs

SALEM, Ohio – Pork checkoff opponents racked up a victory last week with a federal judge’s ruling that the pork checkoff is unconstitutional.

Judge Richard Enslen of the U.S. District Court for the Western District of Michigan ruled Oct. 25 that all collections of the unconstitutional checkoff must cease by Nov. 25.

“The government has been made tyrannical by forcing men and women to pay for messages they detest,” Enslen wrote in his report. “Such a system is at the bottom unconstitutional and rotten.”

On the flip side, Craig Christensen, vice president of the National Pork Board, said the ruling is a “blow to the industry.”

“The pork checkoff has worked for pork producers to promote pork, to increase demand, to expand markets and to provide on-farm information,” he said. “Producers invest in the checkoff and the pork checkoff delivers, for all producers.”

Through the national pork checkoff, producers most recently invest 40 cents for each $100 value of hogs sold.

The funds go toward state and national programs in the advertising and marketing of pork.

Disappointment. U.S. Secretary of Agriculture Ann Veneman said she was disappointed in the ruling that the Pork Promotion, Research and Consumer Information Act is unconstitutional.

“The pork promotion has helped to increase demand for pork and pork products and has contributed to increased U.S. pork exports. These results have led to widespread support for the program by pork producers.

“We are consulting with the U.S. Department of Justice to determine the next steps regarding this matter,” Veneman said.

Going to court. This decision comes on the heels of an almost two-year dispute regarding a referendum conducted in 2000 where a majority of producers voted to terminate the checkoff.

The case began as a challenge to the “fairness” of the pork producers’ referendum, according to Enslen’s ruling.

However, cross claims were then filed by the Campaign for Family Farms, claiming the checkoffs go against producers’ freedom of speech rights.

These defendants said the checkoff was beneficial to factory farms but not family farms and that the checkoff dollars spent on advertising benefited packers and retailers but not family farmers, according to the court’s ruling.

“In days of low return on [agriculture], the decision of an individual farmer to devote funds to uses other than generic advertising are very important,” Enslen wrote in his report.

“Indeed, the frustration of some farmers are likely to only mount when those funds are used to pay for competitors’ advertising, thereby depriving the farmer of the ability to pay for either niche advertising or non-advertising essentials (such as feed for livestock).”

Looking back. Despite the 2000 referendum against the checkoff, it was not terminated and was instead determined to be “advisory in nature,” according to a release from USDA in February 2001.

USDA said the producers’ vote against the checkoff could not be considered a binding referendum because it did not follow the Pork Promotion, Research, and Consumer Information Act of 1985.

This act requires 15 percent of producers and importers to petition to request the referendum.

The referendum resulted in 15,951 producers voting against the checkoff program and 14,396 voting in favor of the program, according to numbers given in the court ruling.

Questionable. According to a release by the National Pork Producers Council, the petition drive was 15 percent short of the required signatures.

Regardless of there not being enough signatures, then-Secretary of Agriculture Dan Glickman called for the referendum, going against the pork act, according to the same release.

“As a matter of basic fairness, I believe that producers deserve the opportunity to vote on this checkoff program,” Glickman said in a January 2001 statement. “It is, after all, a mandatory assessment, akin to a tax, that all producers must pay even if they disagree with it.”

Shortly after, a suit was filed and Enslen ruled through a temporary restraining order that Glickman did not have the authority to call for a referendum.

“Allowing the Secretary to violate the Pork Act by usurping more authority than he was given by Congress does not serve the public,” Enslen wrote in a previous report.

“Likewise, allowing the Secretary to terminate a program relied on by many, when the process used to arrive at termination is allegedly flawed, is not in the public interest.

“The entire process leading to the termination of the Pork Checkoff Program was arguably flawed. It is in the public’s interest that a court examine the proceedings and their result.”

Subsequent to the filing, Veneman took office and reached a settlement.

Although the checkoff was not terminated, the ties between the National Pork Board and National Pork Producers Council were severed, in an attempt to make the National Pork Board “more responsive to producers’ needs,” according to the USDA release.

Another opportunity. Regardless of whether this latest decision is tied up in court with appeals, producers will have another opportunity for a referendum no earlier than June 2003.

At this time, USDA will offer a survey and give producers and importers an opportunity to ask for a referendum.

In 2001, USDA issued a release saying, “If 15 percent of producers and importers request a referendum, USDA will then conduct a referendum within one year to determine if the program will continue.” It is unclear how this latest ruling affects such a future vote.