“Beef, it’s what’s for dinner” was a Beef Checkoff campaign almost 30 years ago that is still recognized by 88 percent of the public. And the program’s legitimacy was settled in 2005 in a 6-3 Supreme Court ruling written by Justice Antonin Scalia. He found the fee-based advertising was government speech and not an infringement on anyone’s First Amendment rights.
But success and storied history has not kept the U.S. Department of Agriculture out of court when it comes to the Beef Checkoff program.
The last time the Beef Checkoff was challenged in the courts, USDA managed to find a way to end it by entering into Memorandums of Understanding (MOUs) with 20 “qualified state beef councils.”
Those agreements with qualified state beef councils, some private and some created by state statutes included Colorado, Florida, Hawaii, Indiana, Kansas, Maryland, Montana, Nebraska, Nevada, New York, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia and Wisconsin.
Under the MOUs, the USDA gets pre-approval of the beef promoting advertisements sponsored by the state beef councils. Those approval rights make certain it is “government speech” consistent with the Scalia decision.
“Thus, the MOUs substantively amended the existing regulatory scheme and gave USDA enforcement power over the state beef councils (and indeed created new obligations for the state beef councils), says the latest complaint filed in U.S. District Court for the District of Columbia. “Prior to the MOUs, there was no legislative basis for USDA to exercise control over the state beef councils in this way.”
The new complaint was filed on Sept. 11 by the Billings, MT-based Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF). It claims to be the nation’s largest cattle trade association that “exclusively represents independent cattle producers.”
R-CALF has long complained about how Beef Checkoff funds are spent, insisting that they should “be administered in a manner that benefits independent, domestic producers. “
According to its national website, “The Beef Checkoff program is a producer-funded marketing and research program designed to increase domestic and/or international demand for beef.” The Beef Checkoff is funded by the collection of a $1-per-head assessment on all cattle sold in the U.S.
R-CALF’s previous challenge to the state beef councils was made on the grounds that they were private entities engaged in private speech, but the USDA/state council agreements turned their pronouncements back into “government speech.”
Government speech is not subject to anyone’s First Amendment challenges because it has been “subject to democratic accountability.” “Whether a compelled subsidy funds “government speech turns on whether government officials exercise ‘effective control’ over the speech.” the earlier ruling said.
“The district court found that the MOUs provided sufficient control over the speech of the private state beef councils to render that speech “government speech,” and thus bring this aspect of the federal Beef Checkoff program in line with the First Amendment (according to) R- CALF v. Perdue, No. CV-16-41-GF-BMM-JTJ, Dkt. No. 147 D. Mont. May 2, 2016.
But R-CALF believes the USDA failed to get it exactly right. It says in the previous court action USDA was not acting within the “notice-and-comment procedures” of the federal Administrative Procedures Act.
The new complaint says: “This has deprived R-CALF and its members the ability to advance alternative and/or additional reforms to the federal Beef Checkoff program such as adding provisions to the program that”
- (a) grant USDA the ability to appoint or remove board members of the state beef councils;
- (b) give USDA the ability to review the state beef councils’ oral speech;
- (c) prevent the state beef councils’ from funding private third-party speech USDA never reviews;
- (d) prevent the state beef councils from sharing staff and facilities with other private third-parties; and
- (e) require a USDA official to participate in the business meetings of the state beef councils.
“R-CALF has seen that Beef Checkoff expenditures by state beef councils are frequently used to promote the type of speech to which R-CALF objects, including speech that promotes corporate consolidation in the beef industry and advertisements that make no effort to distinguish domestic beef from other beef,” the complaint continues.”
“Moreover,,” it says, “R-CALF has seen that much of the money retained and used by the state beef councils under the federal Beef Checkoff program goes to the National Cattlemen’s Beef Association and other entities that advocate for corporate consolidation in the beef industry, which threatens independent ranchers.
“Additionally, R- CALF’s members are threatened by efforts to treat all beef as equal or that fail to distinguish between where and how beef is produced. R-CALF believes strongly that consumers should and would prefer domestic beef produced in compliance with the United States’ rigorous standards over other beef that is not if they were empowered to make that distinction.”
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