By Dan Flynn | October 23, 2016
The Beef Checkoff is up Tuesday for a federal court hearing where anything could happen from dismissal of the challenging lawsuit to a temporary restraining order for the plaintiff’s.
The Beef Checkoff refers to money for marketing and research, including food safety research, to promote the cattle industry. The Beef Promotion and Research Act of 1985 gives the Secretary of Agriculture the power to impose a $1 per head charge each time cattle are sold.
The latest challenge to the Beef Checkoff was filed May in U.S. District Court in Great Falls, MT. The Billings, MT, Ranchers-Cattlemen Action Legal Fund of the Stockgrowers of America – usually referred to as R-CALF, sued Secretary of Agriculture Tom Vilsack over program details.
At Tuesday’s hearings, U.S. District Court Judge Brian Morris, appointed by President Barack Obama in 2013, will have an opportunity to sort out some of the completing motions that have been going back and forth.
The $1 per head Checkoff is split between a national fund, known as the Cattlemen’s Beef Promotion and Research Fund, and a qualified state beef council (QSBC), in most states.
R-CALF sued, claiming the U.S. Department of Agriculture does not have a “procedure by which a cattle producer who disagrees with the Montana Beef Council’s message.”
However, attorneys for USDA said such a procedure does exist and there is an opt-out option that was found consistent with the First Amendment.
In a 2005 Supreme Court case, promotions like those funded by the Montana Beef Council, were found to be “government speech” and therefore legal.
R-CALF attorneys are telling Judge Morris that the Montana Beef Council is not sufficiently under USDA control for the 2005 standard to apply to it.
The Supreme Court found that “compelled funding of government speech does not alone raise First Amendment concerns” and there is no right not to fund government speech.
R-CALF want Judge Morris to issue a Temporary Restraining Order to prevent any Beef Checkoff dollars from going too or being used by the Montana Beef Council without “the payer’s affirmative consent” and until the court can act on the plaintiff’s motion for a summary judgement.
The freshness of the 2005 high court case, known as Johanns v. Livestock Marketing Association, may be a factor in why attorneys for both R-CALF and USDA say they are prepared to go to trial without the need for any pre-trial discovery or depositions.
But government attorneys do not think it should get that far because, they argue, R-CALF lacks standing to continue the case, which they say was brought on a misunderstanding since all Checkoff dollars can be re-directed to the national fund.
“Recognizing that all producers may not have been aware of the option to direct their full federal assessment to the Beef Board (particularly in light of language that was inadvertently removed from the Beef Order in 1995,) USDA recently issued a Notice of Proposed Rulemaking (NPRM) that proposes to make this option and procedures for exercising it explicit in the Beef Order,” USDA’s attorneys said.
“Specifically, the proposed rule would make it clear that producer may ‘choose to direct the full $1.00-per-head federal assessment to the Beef Board … in states where state statutes do not require producers to contribute a portion of the $1.00 per head federal assessment to the State beef council,” they added.
That, however, goes where R-CALF likely does not want to go, either. It competes against the larger Denver-based National Cattlemen’s Beef Association (NCBA). The two organizations frequently take opposing policy positions and NCBA manages the Beef Board.
R-CALF believes American beef should primarily be marketed as just that, made in the USA. It was an original and long-time supporter of County of Origin Labeling (COOL). NCBA, like most of the North American beef industry, favored killing COOL, especially after the World Trade Association ruled it was a non-tariff barrier to trade damaging Canada and Mexico.
“With COOL gone, there is now a worldwide effort to render the origins of U.S. cattle irrelevant on a global scale,” R-CALF’s CEO Bill Bullard wrote recently in a letter to the industry. “The effort includes relegating U.S. farmers and ranchers to nothing more than raw-product suppliers to the multinational meatpackers’ global supply chain.”
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