Family defeated in milk checkoff lawsuit

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SALEM, Ohio – Milk producers nationwide will continue to foot the bill for milk mustaches on Stone Cold Steve Austin, Britney Spears, Austin Powers and Spider-Man.

A U.S. district court judge ruled March 24 the milk checkoff is constitutional.

The checkoff funds dairy research, education and promotional efforts like the mustache campaign.

The ruling came nearly a year after the suit was filed by dairy farmers Joseph and Brenda Cochran of Westfield, Pa.

Lawsuit. The Cochrans filed the suit jointly with the Center For Individual Freedom in Alexandria, Va., a nonprofit organization with the mission to protect and defend individual constitutional freedoms and rights.

In January, seven other dairy farmers who support the checkoff’s constitutionality joined the suit as defendants with USDA secretary Ann Veneman.

Reason for contest. The Cochrans contested the checkoff, saying they believed ” … the [farm’s] use of sustainable agriculture in the form of less intensive herd management and grazing systems makes for superior milk, promotes better use of the resources, promotes the environment and … provides a healthier product for humans …”

The family believed their farming methods were different from other producers and objected to generic milk promotion as “speech that denies there is any difference in milk,” according to the complaint.

“The court put great emphasis on milk as a heavily regulated commodity and basically ignored the constitutional concerns of free speech,” said Brenda Cochran.

“The assessment is purely tremendous raw power of the government and causes us to cease to be individuals with certain sacred rights,” she said.

Drop in the bucket. The Cochran family farms 213 acres in Tioga County with their 14 children, producing 7,000 pounds of milk each day.

Their 160-cow herd is mostly Holsteins, but also has Jersey and Normandy crosses.

Their herd production adds nearly $4,000 annually to the nationwide checkoff – 15 cents per hundredweight – as a result of the Dairy Promotion and Stabilization Act of 1983.

The family said yearly checkoff contributions were “a significant portion of the [farm’s] gross profit margin” and kept them from “implementing essential farm management practices,” decreasing their ability to remain competitive in the dairy industry.

Precedent. In his ruling, district Judge John E. Jones III cited two cases argued before the U.S. Supreme Court.

In United States v. United Foods, the court ruled the checkoff violated the First Amendment by compelling mushroom growers to pay for generic industry advertising.

In the 1997 case Glickman v. Wileman Bros. & Elliott, the court ruled the suit brought by California nectarine and peach marketers relied more heavily on economic regulations than First Amendment freedom, and ruled the checkoff to be constitutional.

It was Jones’ duty to decide which case set the precedent for the milk checkoff.

Ruling. Jones ruled the dairy program “is part of a larger regulatory scheme affecting the sale and production of milk,” likening it to the Wileman case.

Jones also said no section of the act restrains the Cochrans’ or any milk producer’s freedom to communicate any message they want.

“There can be no doubt if the relevant advertising is effective in that it increases the demand for milk, it will have furthered the articulated objectives of the act,” Jones said in his written opinion.

Response. “We’re very, very disappointed and think this is an incorrect and unfortunate decision,” said Eric Schippers, president of the Center for Individual Freedom.

“It’s only going to further the plight of the family farmer,” he said.

The Cochrans and the center are weighing their options for an appeal and have 60 days to decide, Schippers said.

“Every reaction we’ve heard has been negative, even from nonfarm people in the community,” Brenda Cochran said.

“Even they can see that if this program is so beneficial, participation should be 100 percent voluntary.”

Projects. The 2002 checkoff budget hovered around $250 million, according to David Pelzer, vice president of industry relations for Dairy Management Inc.

The organization works with state and regional organizations and manages all national dairy checkoff programs.

Aside from the popular “Got Milk?” mustache campaign, checkoff dollars funded a school milk pilot test aimed to increase children’s consumption; partnered with Pizza Hut for the “Summer of Cheese” promotion, and identified new uses for dairy ingredients in 2002.

The school campaign showed milk sales increased 18 percent when schools offered flavored milk, and the Pizza Hut promotion drew demand for 100 million pounds of cheese through pizza sales.

Newest campaign. Early this year, checkoff funds helped kick off the new “3-A-Day” nutrition-based consumer marketing and education program.

“There are fewer farmers but milk production is still increasing. The checkoff helps increase demand in both the U.S. and abroad. It’s a good thing for dairy producers if we can find a home for all the milk produced,” he said.

(Reporter Andrea Myers welcomes reader feedback by phone at 1-800-837-3419, ext. 22, or by e-mail at amyers@farmanddairy.com.)

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