America's long-running 'Got Milk?' ad campaign may be under threat after an appeal court ruled that forcing farmers to pay for it was unconstitutional.
The ads are the most high-profile of several promotions organised by Dairy Management Inc, which funds them from annual fees levied on farmers via the National Dairy Checkoff scheme.
However, Joseph and Brenda Cochran, owners of a small farm in Pennsylvania, have challenged the mandatory payments, which raise an estimated $43.8 million (€35.3m; £23.6m) a year. They argue that the fees force them to fund ads they do not support, thereby breaching their constitutional rights.
This week, a three-judge panel of the US Court of Appeals agreed, overturning the decision of a lower court. The dairy ad scheme, it ruled, "violates the Cochrans' First Amendment free speech and association rights by compelling them to subsidize speech with which they disagree."
The DMI insists current marketing efforts -- including the latest 'Got Milk?' ads from Lowe Worldwide in New York -- will be unaffected. It plans to appeal in a higher court.
"We're confident," declared David Pelzer, DMI vp for industry relations, "that ultimately the courts will rule that the National Dairy Checkoff is good for America's dairy farmers and for the American public."
The issue may force the Supreme Court to reassess the constitutional position of a range of industry schemes that force farmers to fund advertising.
In 2001, it ruled that a Mushroom Council campaign represented "compelled speech" and therefore breached the First Amendment [WAMN: 27-Jun-01]. It distinguished this advertising-only scheme from an earlier effort for peaches, which was deemed part of a federal regulatory program and approved in 1997.
Data sourced from: AdAge.com; additional content by WARC staff