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Tuesday, April 08, 2014

Law - "The Christmas Tree Fee Quietly Takes Root;" Reminiscent of "Got Milk?"

This post Friday by Joe Palazzolo of the WSJ Law Blog reports that:

A federal regulation that took effect this week imposes a 15-cent assessment on every Christmas tree cut and sold in the U.S. or imported into the country.

The reason behind the fee: to fund a national marketing program.

These are trying times for Christmas tree growers. An industry task force on tannenbaums reported that the market share for fresh-cut Christmas trees in the U.S. declined by 6% from 1965 to 2008, while the market share for artificial trees increased by 655% in that same period.

A few years ago, the task force pleaded with the federal government for help, and this week the U.S. Department of Agriculture put a present under its tree: a regulation that creates a marketing program to match the heavy advertising the fake-tree industry does so well.

Included in the regulation, which was first published in 2011 but takes effect now, is the 15-cent assessment to pay for the program. * * *

The USDA received more than 500 comments on the regulation. The Heritage Foundation, for one, urged the agency to withdraw the rule, calling it “an inappropriate use of governmental power in a society based on free markets, limited government, and individual freedom.”

ILB: This looks a lot like the milk, pork, beef, mushroom, etc. checkoff programs that were successfully challenged in the lower courts in 2004. These these ILB posts from 2004, including this one quoting the Omaha World-Herald:
The U.S. Supreme Court could decide as early as Monday whether it will hear arguments defending the constitutionality of the beef and pork checkoffs. The two checkoffs, which use money from livestock sales for ad promotions, have each been ruled unconstitutional in separate appeals courts. * * *

The Eighth U.S. Circuit Court of Appeals had ruled in a South Dakota case that livestock producers should not have to be required to help fund the advertising campaign. * * * Last October, the Sixth U.S. Circuit Court of Appeals upheld an earlier ruling to end the mandatory pork checkoff program. The U.S. Department of Agriculture appealed the decision. In both cases, judges rejected the argument that the checkoffs are tantamount to government speech and therefore not subject to the First Amendment.

But in May of 2005, the SCOTUS ruled otherwise, according to this story from Iowa Public Television dated May 27, 2005:
On a vote of 6-to-3, the U.S. Supreme Court this week upheld the constitutionality of the Beef Checkoff program. The High Court ruled the government was within its rights to force all U.S. beef producers to pay for multi-million dollar advertising and research initiatives.

Established by Congress in 1985, the Beef Checkoff program requires farmers and ranchers to pay a $1.00-per-head fee on cattle sold in the United States. Those funds, which amount to more than $80 million per year, are administrated by a government-appointed group to support promotion and research programs. * * *

The Supreme Court's decision means the beef checkoff will continue without interruption. And experts in agricultural law claim the ruling may revive cases where mandatory participation has been overturned in other courts including the Washington Apple checkoff, the Florida Citrus Box Tax, and the California grape checkoff.

From a May 24, 2005 Chicago Tribune story:
While the ruling will allow the beef promotion campaign to continue uninterrupted, it may also have a major impact on more than a dozen other federally sanctioned checkoff campaigns that promote everything from pork and soybeans to mohair and milk. About half of the other programs--which created such ad slogans as "Got Milk?" and "Pork: The Other White Meat"--are being challenged in court for violating free speech.

Posted by Marcia Oddi on April 8, 2014 08:49 AM
Posted to General Law Related