While the recent Philadelphia court ruling has been referred to as a "got milk?" ruling in the general media, Dairy Management Inc.â€™s (DMI) efforts have shifted away from the "got milk?" program to the "3-a-Day of Dairy" campaign. Less than 5% of the producer program now involves marketing that uses the "got milk?" tagline. However, California milk companies have an active "got milk" program and the Milk Processor Education Program (MilkPEP) currently runs the successful National Milk Mustache "got milk?" Campaign. Neither of these programs is involved in generic marketing litigation.
On February 24, a three-judge panel of the Third Circuit Court of Appeals in Philadelphia ruled that the dairy producer checkoff violates the free speech rights of farmers who help pay for but don't agree with the program's marketing message. This ruling reverses a lower court's judgment last year in favor of the checkoff. The decision is likely to be appealed, either to the full Third Circuit Court or to the U.S. Supreme Court.
"The U.S. Department of Agriculture regards such programs, when properly administered, as effective tools for market enhancement," says Agriculture Secretary Ann Veneman, who is a defendant in the case due to USDA's oversight of the program. "We are consulting with the U.S Department of Justice to determine the next steps regarding this matter."
During the appeals process, producer assessment collections will continue. Paul Rovey, chairman of Dairy Management Inc. (DMI), stated that he is "confident that the dairy [producer] checkoff program will ultimately prevail in the litigation process."
"We'd like to stress that both the dairy producer (DMI) and processor (MilkPEP) programs are very important in increasing demand for dairy products, and in helping educate Americans about the benefits of dairy products," says Susan Ruland, International Dairy Foods Association vice president.
According to the Cornell study on the processor and producer checkoff programs submitted to Congress last year, fluid milk consumption would have averaged 4.3% lower each year between 1998 and 2002 without the checkoff programs. Total consumption of milk in all dairy products would have averaged about 2% lower annually, or about 3.2 billion pounds a year.
The lawsuit against the dairy producer checkoff was first filed in April 2002 by Joseph and Brenda Cochran, who run a 200-cow dairy farm in Pennsylvania, and is supported by an activist law firm in Washington, D.C. The Cochrans disagree with the checkoff program's generic marketing of milk, believing that their farm's milk is superior to other milk due to their "traditional" on-farm management style, such as their decisions to allow their cattle to graze and to not supplement cows with recombinant bovine somatotropin (rBST). The couple had paid between $3,500 to $4,000 to the checkoff annually.
IDFA will continue to monitor this lawsuit and similar checkoff cases for any implications for the processor-funded MilkPEP, which has not been challenged. Separate cases questioning the constitutionality of the beef and pork checkoffs are currently awaiting action by the U.S. Supreme Court. In fact, the court will announce on April 19 its decision on whether or not to hear the beef case. If the Supreme Court decides to hear the beef case, its ruling would not be made until 2005.
Each checkoff is governed by unique regulations, and different programs have been viewed differently by the courts. For instance, the Supreme Court ruled against the mushroom checkoff program in 2001, but in favor of a program involving the tree-fruit industry in 1997.