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by Alan Guebert
Milk?s mustache wiped off
In another checkoff-shattering opinion unveiled Tuesday, the US Court of Appeals for the Third Circuit ruled the Dairy Promotion Stabilization Act of 1983 unconstitutional on grounds it violates an individual?s First Amendment rights to free speech.
If you?re keeping score at home or on the farm, the Feb. 24 decision makes federally mandated commodity checkoffs zero-for-three in federal appeals courts since last October. The milk checkoff now joins it half-sisters--the beef and pork checkoff--in the half-dead state of legal limbo land.
The milk case, titled Cochran v Veneman, arose when Joseph and Brenda Cochran, a Tioga Country (PA) dairying couple, alleged the Dairy Act?s checkoff ?compelled them to subsidize speech with which they disagreed ...?
The Cochrans operate a 200-acre, 150-cow traditional dairy farm: low intensity management, rotational grazing, no production-enhancing hormones. According to their lawsuit, they ?believe that their methods result in healthier cows, a cleaner environment and superior milk.?
That belief, however, ran smack into the mandated 15-cents per hundredweight dairy checkoff. The Cochrans objected to paying the assessment because, according to court documents, ?it conveys a message that milk is a generic product that bears no distinction where and how it is produced, and thereby forces them to subsidize speech with which they disagree.?
The argument is identical to that which sunk the red meat checkoffs earlier: federally-chartered checkoffs violate an individual?s right to free speech and right to association by compelling them to participate even though they see no personal benefit in doing so.
And just like the beef and pork cases, USDA and Justice Dept. attorneys argued in Cochran that federal checkoffs are ?government speech,? a type of speech not protected by the First Amendment.
And just like the beef and pork cases, USDA and Justice Dept. attorneys got their heads handed to them by a unanimous court that strongly disagreed with that reading of the Constitution.
But the Cochran case held two elements that neither beef nor pork had. First, the dairy farmers lost the case in the lower court when USDA successfully argued that the dairy industry was highly controlled by federal orders--milk orders, pricing formulas and the like--and the checkoff was just another one such order.
The appellate court disagreed, painstakingly going through all the relevant orders to find that ?the Dairy Act is a stand-alone law that was not passed as part of any other federal dairy regulatory scheme.?
That point-by-point analysis also led it to conclude that the checkoff was funded, operated and managed by ?private milk producers.? That demolished USDA?s ?government speech? defense; the checkoff was entirely outside government.
Secondly, in reversing the lower court?s decision and ruling the milk checkoff sour, the Third Circuit found itself back on familiar ground.
In a 1989 Pennsylvania beef checkoff case known as Frame, the court upheld the constitutionality of federal commodity checkoffs because, the court noted, ?the government?s interest in maintaining and expanding beef markets proves ... compelling.?
One appellate judge in that decision, Judge Sloviter, however, dissented and wrote her own opinion which flatly stated that ?I doubt that the type of compelled speech at issue here can be justified on any basis.?
In the 15 years since that she penned that view, checkoff cases have come and gone in federal courts. As each moved, the body of law surrounding checkoffs expanded. In the biggest case, US v United Foods in 2001, the US Supreme Court ruled the mushroom checkoff unconstitutional.
Throughout that period Judge Sloviter watched the legal evolution from her perch on the Third Circuit bench where--not incidentally--she remains today.
And guess who wrote the Third Circuit opinion that declared the federal milk checkoff unconstitutional? Hey, what goes around comes around.
Or, as several checkoff opponents are noting this week, ?Got the First Amendment??
News, views and all those blues
USDA?s newest upper-downer explanation: ?Well, we're basing our statement that the (Washington State mad cow) animal was downer on the fact that there are records from the Food Safety Inspection Service veterinarian who examined this animal before slaughter. He examined her in a recumbent position on the trailer that brought her to the livestock market. Having said that, there is nothing saying that an animal that is down cannot get up. So in fact both accounts could potentially be true.? Dr. Ron DeHaven, deputy administrator USDA Veterinary Services Program, Feb. 23.
Told ya?: ?Europe and developing countries claimed a victory over the US Friday when a conference of more than 80 nations agreed to improve the labeling of genetically modified food shipments despite US objections. The US warned other countries had rushed into decisions that might disrupt international trade.? Associated Press, Feb. 27.
Nobel Peace Prizes all around! "Companies like ADM, Bunge, as well as Cargill, do not want to have the distinction of being the one that brings in the Asian Rust disease problem that is evident in the South American soybean crop." Parry Dixon, director of economic research for Archer Daniels Midland on why no South American soybeans are being imported to the US, Feb. 23.
Don?t write that acceptance speech just yet ... ?Gilson Cosenza, assessor of the Brazilian Agriculture Ministry ... says that ten American government employees were in Brazil between February 9 and 14 to verify installations for processing, cleaning and embarking soybeans at the ports of Paranagua and Santos; ?They were interested in buying Brazilian Soya.? Market representatives confirm that the United States needs Soya, but they doubt the possibility of Brazilian sales because of the incidence of Asiatic plant blight in the Brazilian fields. ?They were clear that they needed grain,? ?said Cosenza. Gazeta Mercantil online (Brazil), Feb. 25.
So, Madam Secretary, is USDA shilling for grain giants? It has come to our attention that there have been efforts by U.S. government representatives to assist in the importation of soybeans from Brazil according to recent press stories. This concerns us for several reasons, and we would like to verify the accuracy of the news reports and if true, whether or not these officials were representing your department.? Keith J. Dittrich, president of the American Corn Growers Association, in a letter to Secretary of Agriculture Ann Veneman, Feb. 26.
On amending the US Constitution: ?John R. Vile, a political scientist at Middle Tennessee State University in Murfreesboro, said that of more than 10,000 amendments that had been introduced in Congress, just 33 had won the required majorities ...
?The last addition to the Constitution was the 27th amendment, dealing with Congressional pay, which was ratified in May 1992, two centuries after being approved by Congress in 1789.? New York Times, Feb. 26.
If this is an economic recovery ... ?More than 2,400 employers across the country reported laying off 50 or more workers in January, the third-highest number of so-called mass layoffs since the government became tracking them a decade ago.
?Only in December 2000 and December 2002 were the number of large layoffs higher. A total of 239,454 workers lost their jobs in the January layoffs, the Bureau of Labor Statistics reported yesterday, based on unemployment insurance claims filed with state employment agencies. Among them were 17,544 temporary workers.? Washington Post, Feb. 26.
Tell me you?re shocked: ?The nation's largest beef packer, Tyson Foods Inc., said Thursday it has asked a federal judge to throw out a jury's $1.28 billion verdict that the company illegally manipulated cattle prices.
?Tyson asked visiting U.S. Senior District Judge Lyle Strom to enter a substitute ruling or order a new trial. A jury sided with a group of cattlemen in ruling last week that the Arkansas-based company used contracts with a select few ranchers to drive cattle prices down for other producers.? Associated Press, Feb. 26.
Making hamburger of the Tyson decision: ?The jury's ($1.28 billion) decision appears at odds with the huge marketing changes that have occurred to help meet consumer demand for product quality and consistency. Alliances and agreements allow packers to set carcass specifications for fed cattle so they can, with reasonable certainty, provide assurances to retailers and food service customers how beef will grade and taste.? Lean Trimmings, a internet publication of the National Meat Association, Feb. 23.
Frying the hamburger: ?The (trial) evidence showed that Tyson, 10 to 15 years ago, began cutting very favorable deals with some feeders to lock up inventory. These yards included Cactus, Simplot, CattleCo, Beef Marketing Group, Pioneer Feeders and others. The favorable deals did not make economic sense to Tyson except to facilitate price manipulation. Tyson?s records revealed that captive cattle were of lower quality than cash market cattle.? The Organization for Competitive Markets, later on Feb. 23.
More Aussie FTA reaction: ? We already know that three packers control more than 80 percent of all beef in this country. The Australia trade agreement increases concentration because Swift and Co - owned by ConAgra and the second largest meat packer and procurer of beef in the U.S. - is also Australia?s largest meat packer.? Gilles Stockton, a Montana rancher and chair Northern Plains Resource Council Agriculture Taskforce and Western Organization of Resource Council Trade Issue Team.
A reader writes
The following email was received Feb. 23 from a large animal veterinarian west of the Mississippi who, by request, we will label Dr. M:
Hello Mr. Guebert-
I?ve followed you column for some time now in (a newspaper.) I just read online your Feb. 20th article ?USDA Mad Cow Miracle: Downer Cows That Walk,? (TFW, Issue 87).
I worked for three years for the USDA Food Safety and Inspection Service in a large cull cattle plant as the antemortem veterinarian. I would agree with your assessment of the USDA Secretary and the FSIS management. I have never in my short career as a veterinarian, or even just in life in general, met a bigger bunch of truth benders or out-and-out liars ... Needless to say as someone who was brought up to not lie and who still follows that rule, I was and still am shocked by the total lack of integrity at FSIS/USDA. So it wouldn?t surprise me that the (Washington State mad cow) reports may have been fudged.
Frankly, your remarks regarding the pathological, almost neediness, of these stellar examples of public employees to distort reality and to have no qualms about being caught in their lies were right on target.
Regards,
Dr. M
PS: The veterinarian (who examined the Washington State mad cow) should have said she was resting if she was able to get back up, and then waited a bit to exam her. I also worked in a bovine clinical practice and grew up on a dairy farm, so I have quite a bit of cow experience. One thing about FSIS: they do not hire veterinarians based on their veterinarian skills, only if you are alive and able to draw breath. So even if a vet checked (the mad cow), you?d wonder about the veterinarian?s clinical experience or seriousness in performing a good exam.
© 2004 ag comm
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