Beef checkoff ruled unconstitutional

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SALEM, Ohio – The battle of the beef checkoff continues in the court system, with the latest round going to checkoff opponents.

The 8th U.S. Circuit Court of Appeals upheld a lower court ruling July 8 that the collections of mandatory assessments is unconstitutional.

Violates free speech. The ruling affirmed the lower court’s decision that the beef checkoff violated the First Amendment because it requires beef producers to pay for ‘speech’ to which they object.

The court rejected the argument raised by the defendants, the USDA and the Cattlemen’s Beef Promotion and Research Board, that checkoff programs were “government speech” and therefore an exception to the First Amendment.

The Livestock Marketing Association, the primary plaintiff, applauded the decision.

Association president Billy Perrin said the ruling “affirms all American beef producers’ First Amendment, free speech right.”

“Hopefully, this decision will bring finality to this long-running dispute,” Perrin added.

USDA ‘disappointed.’ U.S. Secretary of Agriculture Ann Veneman said she was “disappointed” at that the appeals court upheld the lower court’s ruling.

“USDA regards such programs, when properly administered, as effective tools for market enhancement,” Veneman said.

She indicated the USDA is consulting with the U.S. Department of Justice to determine the department’s next steps.

The defendants have 45 days to decide whether to ask for a rehearing by the full Circuit Court.

Similar to mushroom case. The court said the beef checkoff program is “identical to the mushroom checkoff program” that the U.S. Supreme Court found unconstitutional in 2001.

“… the government’s interest in protecting the welfare of the beef industry by compelling all beef producers and importers to pay for generic beef advertising is not sufficiently substantial to justify the infringement [on First Amendment free speech right],” the court ruling said.

Collections continue. Collections of the $1-per-head checkoff will continue while the government and other checkoff proponents decide whether to ask the full Circuit Court to rehear the case.

An appeal to the U.S. Supreme Court is also a possibility, according to Nebraska Cattlemen Inc., an intervener in the case.

Stay tuned. The saga continues in other courtrooms. The 9th Circuit Court of Appeals in Montana is currently considering an appeal on a similar challenge to the checkoff. In this suit, however, the district court ruled that the checkoff was constitutional.

The resolution of conflicting lower court rulings is one reason checkoff supporters may ask the Supreme Court to decide the issue.

“We have anticipated that this decision would ultimately need to be made by the U.S. Supreme Court,” said Eric Davis, president of the National Cattlemen’s Beef Association. “We are confident the checkoff will ultimately prevail.”

An earlier Supreme Court decision involving the mushroom checkoff found it was unconstitutional. The mushroom checkoff case, however, did not include the issue of “government speech.”

Also at issue is whether or not making the assessment mandatory contributed to infringing on the free speech rights.

Back to Congress? Sen. Chuck Hagel, R-Neb., indicated late last week that Congress may have to review the beef checkoff and revise the program should the issue be taken up by the Supreme Court and found unconstitutional.

Lots at stake. The checkoff was established as part of the 1985 farm bill. Revenue is used for promotion, education and research programs.

Last month, the beef promotion operating committee recommended a $50.5 million beef checkoff budget for fiscal year 2004, an increase of about 4.3 percent from the $48.4 million 2003 budget.

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