(Jan. 30) SAN FRANCISCO — The 9th District Court of Appeals has ruled that table grape growers don’t have to pay for generic advertising conducted by the California Table Grape Commission, Fresno.

The decision, which reverses a district court ruling, found that the grape commission’s generic advertising program violates growers’ constitutional rights.

Appellants in the case — Delano Farms, Delano; Susan Neill Fresh Fruit Co., Visalia; and Lucas Bros., Delano — sued for a judgment that assessments violated their First Amendment rights.

The three-judge panel said the grape commission served more of an advertising function, not a regulatory one. The panel based its decision on the similarity of the grape commission to the Mushroom Council, Dublin.

The California Table Grape Commission still has several options including appealing the decision back to the Supreme Court.

Kathleen Nave, president of the commission, said the court decision contains significant factual errors that she expects the courts will correct. She added that if the decision were upheld it would not put the commission out of business.

Promotion continues and it is business as usual at the commission, Nave said.

The commission has other important functions besides generic advertising, including education programs and paying for scientific research, Nave said. That is something the appeals court did not consider, she said.

She said the issue has come down to whether the laws creating a commodity group are part of a larger regulatory scheme or stand alone in a relatively unregulated industry. Nave said the errors in the decision are related to industry regulation.