Commodity Checkoff Program - United States Policy

United States Policy

Because individual producers of nearly homogeneous agricultural commodities cannot easily convince consumers to choose one egg or orange or a single cut of beef over another, they often have joined together in commodity promotion programs to use generic advertising in an effort to expand total demand for the commodity, with the objective of helping their own sales as well. Activities are intended to expand both domestic and export demand; examples include advertising, nutrition education, research to improve product quality and appeal, market research studies, and technical assistance. These activities are often self-funded through assessments on marketings – hence, the name check-off programs.

Congress has permitted producer groups to make checkoffs mandatory, and this aspect has generated legal challenges by some producers, who contend they must pay taxes for activities they would not underwrite voluntarily. The U.S. Supreme Court ruled that the mushroom check-off violated the Constitutional free speech provisions (First Amendment), creating uncertainty about the future of other check-offs. Since then, separate lower federal courts have ruled that various check-offs also are unconstitutional. However, on May 23, 2005, the Supreme Court ruled that the beef check-off does not violate the First Amendment. In its decision, Johanns v. Livestock Marketing Association and Nebraska Cattlemen v. Livestock Marketing Association (Nos. 03-1164 and 03-1165), a majority of the Court agreed with check-off defenders that the programs are in fact "government speech" (an issue that was not considered in the mushroom decision).

"Compelled funding of government speech does not alone raise First Amendment concerns,"..."Citizens may challenge compelled support of private speech, but have no First Amendment right not to fund government speech."

Most legal observers predict that this decision will be used to defend other challenges to check-offs.