(June 11) Instead of throwing up their hands and displaying the white flag, perhaps the directors of the Washington Apple Commission should have more closely considered their options in the face of their court battle.

Other state commodity promotion organizations, such as those for grains, include refund provisions. Producers who aren’t happy can elect to file paperwork for a refund of the mandatory assessment

Depending on how low the commodity price falls, refund rates at one commission generally ranged from 7% to 15%. Commodity promotional organizations figure that dissatisfaction rate into their budgets and fund programs accordingly. One couldn’t imagine Washington state apple grower-shippers seeking refunds in droves.

Industry leaders and legislators, in setting up these other promotional boards, wisely allowed people not happy with the fees being deducted from their commodity’s first point of sale a way to opt out.

Now the Washington Apple Commission has announced a restructuring that transforms it into conducting “nonspeech” activities funded by a much lower mandatory assessment of 3½ cents per box.

At first glance, this appears positive, but thanks to the legal maneuverings of a relatively small number of discontented grower-shippers, the new commission will cease promotional activities.

That leaves industry leaders scratching their heads, trying to figure how as individual shippers they could continue what used to be done on a collective scale: conduct a large and well-known promotional program at a cost of about a quarter a box.

Opponents of marketing orders rejoiced, claiming that the demise of the Washington Apple Commission was some kind of a victory for free speech and the Bill of Rights.

I hadn’t noticed any muzzles strapped onto Washington apple grower-shippers. Nor have I seen any compelling evidence that generic promotion of a commodity violates particular grower-shippers’ right to speak freely.

Unlike systems in Canada and Europe, U.S. grower-shippers have the legal right to fund and implement their own sales, marketing and promotional programs.

The justices in the court that ruled against the apple commission must have assumed that grower-shippers are on equal levels to those in other industries that have deeper pockets, such as the manufacturers of cars or airplanes, whose individual industry members can more easily fund their own sales and marketing departments.

By contrast, marketing boards and commissions were developed by farmers. Producers convinced their state lawmakers to set up such organizations. Most remain producer-controlled. Grower-shippers make the key decisions, while professional staffs carry out the programs.

The trouble is that pruning or removing your sales force puts a commodity or product farther away from its customers.

Fewer posters will be distributed to educators who might discuss how nutritional your commodity is. Having fewer marketing people on the ground may result in the customer choosing to buy another commodity.

Consider how, according to some shippers, mushroom sales overall and per capita consumption faltered after the United Foods vs. Mushroom Council ruling rocked that industry. Growers, realizing the need to promote their product, have formed their own voluntary organizations.

The Apple Guy promotion that the Washington Apple Commission funded is a case in point. When the commission voted to park the promotion, certain commissioners were quoted as saying their commodity prices hadn’t risen enough to justify the promotion’s continuance even though it increased consumption among single mothers in selected markets.

The Apple Guy didn’t promote a specific packer. He promoted the commodity as a whole, which clearly benefited from that industry investment.

Directors of state produce promotion boards should consider making their assessments refundable. The commodity promotion organizations and marketing orders are, after all, self-imposed taxes the industry uses to keep itself ahead of the competition.