Mushroom Ruling Threatens Mandatory Ad Programs

27 June 2001

In a decision with potentially dramatic implications, the US Supreme Court ruled 6–3 that individual mushroom growers cannot be compelled to contribute to a generic ad campaign by the Mushroom Council. The payments were challenged by Tennessee grower United Foods [WAMN: 19-Apr-01].

Delivering the court’s verdict, Justice Anthony Kennedy ruled that the charges for industry advertising were unconstitutional, as they represented “compelled speech”.

“Just as the First Amendment may prevent the government from prohibiting speech, the amendment may prevent the government from compelling individuals to express certain views,” he commented.

“The question is whether the government may underwrite and sponsor speech with a certain viewpoint using special subsidies exacted from a designated class of persons, some of whom object to the idea being advanced.”

The court distinguished the Mushroom Council’s campaign from a similar promotion for peaches approved in 1997, the former being wholly an advertising campaign, while the latter was deemed part of a federal regulatory program.

It is feared that the ruling may force courts to decide whether each grower program is constitutional as clear guidelines have not been laid down. Dissenting from the verdict, Justice Stephen Breyer warned the judgement could encourage increased government involvement in grower schemes to ensure they were classed as regulatory programs.

Breyer opposed the majority decision, arguing that the mushroom scheme “does not compel speech itself, it compels the payment of money.” He also warned that the ruling could set a precedent – “That precedent suggests, perhaps requires, striking down any similar program that, for example, would require tobacco companies to contribute to an industry fund for advertising the harms of smoking.”

Although the mushroom campaign was relatively small at $1 million, it could have a serious effect on much larger programs, such as the $100m ‘Got Milk?’ effort.

News sources: Advertising Age - Daily Deadline; New York Times