Farm Product "Check-off" Programs: A Constitutional Analysis

Publication Date: June 2006

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Agriculture, forestry and fishing

Type:

Abstract:

For decades, Congress has enacted laws authorizing generic promotion programs for a number of farm products to increase overall demand and consumption of the agricultural product. These generic promotion programs, commonly known as "check-off" programs, are funded through the payment of mandatory assessments imposed on the amount of product that a covered party sells, produces, or imports. Some producers have opposed the use of generic advertisements and have brought First Amendment challenges in court. Generally, these parties claim that they should not be required to pay for advertisements (i.e., speech ) with which they disagree.

The Supreme Court has ruled on the constitutionality of check-off programs three times in the last eight years, the most recent of which occurred in May 2005. The Court's first two attempts at addressing First Amendment challenges to checkoff programs resulted in contrasting outcomes and some confusion for lower courts. In Johanns v. Livestock Marketing Association, the Supreme Court's third and most recent decision concerning a check-off program (beef), the Court ruled that the generic advertising under the program was the government's own speech, and was therefore not susceptible to the First Amendment challenge before it. The Supreme Court's decision was based on grounds that had not been previously addressed by the Court in the earlier check-off cases and may have far-reaching effects. For example, three circuit court rulings that invalidated other check-off programs have already been vacated by the Court for reconsideration in light of Johanns.

This report begins with a brief introduction to check-off programs and then describes many of the First Amendment principles that have been discussed in checkoff cases. Next is an analysis of the first two challenges that reached the Supreme Court, as well as a brief discussion of subsequent lower court decisions. This report concludes with a discussion of Johanns v. Livestock Marketing Association and its possible implications for check-off programs. This report will be updated as warranted.