(July 1) Cattle producers who had a beef with their national checkoff convinced a federal judge in South Dakota to strike down the program on the grounds that it violates First Amendment free speech rights.

The decision, which will be appealed, could lend momentum to produce-related cases, said Jim Moody, a lawyer who since 1986 has represented growers seeking to overturn mandatory fruit and vegetable marketing order assessments.

He said the beef ruling appears to confirm the Supreme Court decision of last year, which ruled against the Mushroom Promotion, Research and Consumer Information Act. In the U.S. et al. vs. United Foods Inc. decision, the Supreme Court ruled that advertising was the central focus of the mushroom assessment. Thus, the court said the compelled speech was not justified. In 1997, the Supreme Court had ruled in the Glickman vs. Wileman Bros. & Elliot Inc. case that a heavily regulated environment validated mandated assessments and generic promotion.

The next court case relating to the First Amendment issue is likely a ruling on California table grape assessments, Moody said.

Dan Gerawan, a tree fruit grower-shipper and president of Gerawan Farms, Reedley, Calif., said the ruling on the beef checkoff is encouraging. Despite the setback of the Wileman decision in 1997, he said he believes mandatory promotion assessments for California tree fruit are unconstitutional.

Since regulations regarding the beef industry are more significant than those for tree fruit — and the judge ruled those regulations didn’t justify mandated assessments — he said there is no justification for mandated assessment for advertising tree fruit.

“It’s worth the fight. It’s taken 15 years. I’m in it win or lose, and I believe that advertising should be voluntary and not compulsory,” he said.

Gerawan said it’s not important whether other growers agree with him. “It is the court’s role to protect my rights, regardless of the rest of the industry,” he said.

He acknowledged that the fight against mandatory assessments for advertising won’t end easily since state legislatures and Congress may become involved in trying to maintain those programs.

“This battle will probably never be over,” he said.

Moody said he wishes the Supreme Court would clearly state that any mandatory programs that advertise in a competitive market — which he said would include all fruit and vegetable orders — would be struck down as unconstitutional.

While he said some marketing orders have responded to the United decision by adding regulations, he said that doesn’t reduce the competitive nature of the business.

He said the only marketing orders in which mandated assessments would be justified would be those in which a board actually took possession of the product and sold.

“The USDA would be well advised to transition programs to make them voluntary and have their own cheerleading for the good programs,” Moody said. Voluntary programs are much more accountable to the users, he said.

Gerawan said he doesn’t have complaints against a standard-setting marketing order, but he does object to marketing orders that control volume or mandate advertising.

“There is plenty of cooperative advertising going on,” he said, noting that Sunkist and Ocean Spray have cooperative efforts. “No one is saying ‘Pay for advertising or be put in jail,’ like my marketing order does.”

U.S. Department of Agriculture officials said they would appeal the June 21 ruling on the beef checkoff. The appeal process for the case could take years, with the final appeal to the Supreme Court likely in any event.

“I am disappointed by the ruling of the U.S. District Court in South Dakota that the Beef Promotion and Research Act is unconstitutional. The U.S. Department of Agriculture regards such programs, when properly administered, as effective tools for market enhancement,” said Agriculture Secretary Ann Veneman. She said the beef promotion program in particular has helped increase beef demand and exports.

Tim O’Connor, president and chief executive officer of the U.S. Potato Board, a Denver-based marketing organization for U.S. potato growers, predicted an appeal on the beef case to the Supreme Court.

O’Connor, who formerly served as executive vice president of the Illinois Beef Association, said the beef checkoff program has been upheld in previous challenges.

Ansley Watson, a Tampa, Fla.-based attorney with the firm representing five multinational corporations suing the state and its citrus department on the basis of the First Amendment speech, said the ruling may be favorable for that lawsuit, which is expected to be heard later this year.

The processors complain that the Florida Department of Citrus promotes 100% Florida juice, even though imported juice from Costa Rica and Brazil pay an equivalent assessment.

“They are forced to fund a message they don’t agree with,” he said.

Where’s the beef: In the ruling on the beef checkoff, the court said cattlemen shouldn’t be forced to pay for commercials they oppose. Some cattlemen want the ad campaigns to promote U.S. beef, not just beef in general. In addition, the court said cattlemen were being made to pay for ads that benefit others that sell beef, such as restaurants and retail outlets.

He also rejected the argument that beef advertising represented “government speech” and thus was protected. He said the industry managed the board and that the USDA gave only minimal oversight.

The beef program went into effect in 1985 and raises more than $80 million a year on assessments of $1 per head of cattle sold in the U.S.