SALEM, Ohio – The dairy industry finds itself taking the latest hit in a string of commodity checkoff challenges.
Joe and Brenda Cochran of Westfield, Pa., filed a lawsuit April 2 in U.S. District Court in Scranton challenging the constitutionality of the mandatory dairy checkoff promotion program. The suit names the USDA and Dairy Promotion Board as defendants, and seeks to prohibit them from collecting assessments or using existing checkoff funds without prior consent of those assessed.
The suit also asks the court to prohibit the defendants from using checkoff funds in the suit’s defense.
Not alone. The Tioga County couple’s suit was filed jointly with the Center For Individual Freedom in Alexandria, Va., a nonprofit organization with the mission to protect and defend individual constitutional freedoms and rights.
The center placed print ads in major dairy market areas in September 2001, urging dairy producers who felt the checkoff was unfair or unconstitutional to contact them, according to Eric Schippers, executive director for the center.
The Cochrans, described by Schippers as “having a reputation of being outspoken on the issue for some time,” responded to those inquires.
Independent producers. The Cochran family, which includes the couple’s 14 children, produce roughly 7,000 pounds of milk each day on their 213-acre farm in north-central Pennsylvania near the state line, and pay nearly $4,000 annually to the checkoff, Schippers said. They are independent shippers and do not market their milk through a cooperative.
The Cochrans claim the checkoff is a restriction of their right to free speech because it requires them to associate with other dairy producers solely for the purpose of funding speech for the promotion of generic dairy advertising, which they do not approve of, according to their filed complaint.
Producer rights. “This is about our First Amendment rights, plain and simple,” said Brenda Cochran.
“We’re against having to fork over a huge portion of our bottom line for advertising that says all milk is equal.”
“This is an issue of independence,” Schippers said. “If they were members of a co-op, they would have already agreed to regulatory schemes. But they haven’t.”
“We have long held that the First Amendment rights of our nation’s independent ranchers, farmers and dairy producers are being trampled. With Congress and the USDA continuing to ignore their pleas, the courts become the only recourse.”
“This suit is seen by our group as further circling of the wagons,” in checkoff challenges, Schippers said.
A matter of principle. The family brought the lawsuit for reasons of principle and production, he said. The Cochrans are upset about generic dairy ads funded by their checkoff dollars that don’t differentiate between their product and those of their competitors.
“We believe our more traditional farming methods, which promote the environment by better utilizing our resources, result in superior milk that is healthier than most,” said Cochran.
The complaint states “the generic advertising for milk and milk products, for which they are required to pay, denies the existence of the value of such alternative sources of milk by its implication that milk is a generic product and, thus, runs counter to the Cochrans’ own speech and views regarding the production and marketing of milk.”
“This is a question of choice,” said Benjamin F. Yale, attorney for the Cochrans. “The Cochrans, and hundreds of dairy producers like them across the country, are being forced to support speech with which they either don’t agree or don’t wish to make.”
“What’s more, they’re being forced to subsidize speech that directly benefits their competitors. Those are clear violations of the First Amendment.”
A different view. Members on the board of directors for the American Dairy Association Dairy Council Mid East were aware of a likely checkoff challenge within the dairy industry, according to Betty Herron, board secretary and milk producer in Columbiana County.
“We were optimistic and thought that it maybe wouldn’t happen,” she said, adding she’s heard “nothing about positives” about the program benefits.
Herron said the checkoff-funded programs have increased overall dairy product demand, a fact that can be backed up by data including graphs and charts. Promotions like the “Got Milk?” print ads, dairy product vending machine placement, and research projects including a study on plastic milk bottles have all benefited the industry, she said.
“The ad campaign is one of the best we’ve ever seen, and it’s still going strong. Cartoonists and other businesses have picked up the slogan and are now using it, and we’ve got good exposure,” Herron said of checkoff-funded programs.
The slogan recognition has also made farmers’ dollars go farther as companies adapt the saying that ultimately reminds consumers of milk, she said.
“It’s all money well spent to better the industry and defend farmers’ images,” she said, explaining the checkoff serves as a mouthpiece for rebuttal against those who attack the dairy industry.
“It sounds like they don’t want to hurt the dairy industry, but they are,” she said. If the checkoff is lost, product and industry visibility and the ability to sell dairy products will go with it, Herron added.
Checkoff list grows. The dairy checkoff, a result of the Dairy and Tobacco Adjustment Act of 1983, last year collected over $250 million from dairy producers through a mandatory 15-cent per hundredweight – roughly 2 cents per gallon – assessment on all milk domestically produced and marketed commercially.
The checkoff was reconfirmed by a majority of producers in 1993 through a referendum vote, according to Jenny Hubble, vice president of industry and public relations for ADCDC Mid East.
The dairy checkoff lawsuit is the latest in a growing list of challenges to commodity promotion programs in the wake of the June 25, 2001, ruling by the U.S. Supreme Court that found it violates the First Amendment for the government to compel mushroom producers to pay for generic industry advertising in the suit, United States v. United Foods.
It was said the promotional campaign forced United Foods to pay for ads that benefited its smaller competitors.
Previously, in 1997, the same court rejected a First Amendment challenge to the generic advertising program for California tree fruits. When making the United Foods decision, the court made a distinction that the mushroom industry is mostly unregulated and implications of the decision should not be assumed for other commodities.
Currently, the Center for Individual Freedom is also assisting in lawsuits filed by independent beef ranchers against the beef checkoff.
(You can contact Andrea Myers at 1-800-837-3419, ext. 22, or by e-mail at amyers@farmanddairy.com.)
