The entire industry listened intently to the oral arguments presented to the U.S. Supreme Court on Wednesday. Now, it must wait, perhaps until Spring, for a final ruling that's will determine once and for all the fate of the beef checkoff.
It's impossible to miss the irony imbedded in this case. The opponents of the checkoff, who never argued that they disagreed with the message of promoting beef, found themselves after the mushroom case making the argument that as cattlemen they were being forced to support a message with which they didn't agree.
Meanwhile, checkoff proponents, who had always heralded the fact that the program was producer directed and funded, now find themselves arguing that the promotion efforts are government speech.
Most court observers believe the final decision will carry even more nuance than that. In 1997, the court upheld a generic marketing program related to California peaches, nectarines and plums, ruling the objections by some farmers to the ads weren't enough to outweigh the majority of producers and lawmakers who deemed the ads to be beneficial (by a vote of 5-4). Yet in a 6-3 vote in 2001, the Court ruled against the mushroom checkoff, saying the mushroom program was primarily about commercial speech while the California program involved a more extensive regulatory process.
While the Beef Promotion and Research Act plays a major role in supporting nutrition and food safety research, certainly a large portion of its budget goes to promoting beef. Passed in 1988 by a 79% majority, the checkoff has become the industry's major means of conducting research and marketing its product. Unquestionably, all the academic studies have validated that the beef checkoff has worked, returning to producers $6 for every $1 invested. Since 1998, beef demand has grown by 16%, reversing 25 years of plummeting beef demand.
The Livestock Marketing Association (LMA) and the Western Organization of Resource Councils have led the checkoff challenge, while a producer organization -- the Nebraska Cattlemen -- elected to take the lead in acting on behalf of the checkoff.
You have to give LMA credit for holding to their convictions in actively defying the vast majority of its customers (both buyers and sellers) who favor the continuation of the checkoff. After all, opinion polls continue to show producer support for the checkoff to be around 70%, with larger producers far more likely to support the program than smaller producers.
In addition, a total of 113 state and national beef and ag organizations, 35 attorneys-general from nearly every major beef producing state, and the chairmen of both the U.S. House and Senate Ag Committees have filed friend-of-the-court briefs in support of the checkoff. It's hard to fathom any other business organization that would so actively pursue a legal remedy contrary to the wishes of its customers.
LMA spokespeople admit the checkoff has benefited the industry, but the organization hasn't wavered in its commitment to the case. In fact, LMA has openly implied to the 28 states that have enacted legislation allowing a state-level checkoff program to continue if the national program is struck down, that those programs would likely face legal challenges.
Adding another twist to the court case is the fact that Supreme Court Justice William Renquist is battling cancer, and speculation abounds that he's likely to step down before the checkoff case is decided. If this were to happen, the remaining eight justices could potentially deadlock at 4-4. Such a result would validate the lower court's ruling on the checkoff that the program is unconstitutional.