Supreme Court Mulls Mandatory Participation in Generic Ad Campaigns

19 April 2001

In what could be a benchmark case for America’s food production industry, the US Supreme Court on Tuesday heard oral arguments from a mushroom growing company eager to opt out of the government-enforced scheme funding the Mushroom Council’s advertising program.

The arguments on behalf of the grower, United Foods, were advanced by Harvard professor Laurence Tribe, a member of the team representing Al Gore's after the November election debacle. His advocacy received an apparently sympathetic hearing, the court voicing its skepticism about the constitutionality of such mandatory programs.

The professor argued that the fees of 1.5 cents per pound imposed on larger mushroom growers to pay for class advertising are unconstitutional. While upholding the government’s right to compel marketers to include product health warnings or refute misleading claims, Tribe insisted that it has no charter to force other kinds of advertising simply because it thinks it a good idea. If the government thinks the advertising is important, he said, it should pay for it.

In a counter-argument, Barbara McDowell, assistant to the solicitor general, pled that the Mushroom Council advertising was not “compelled speech” but a government program backing a specific industry supported by levies on those receiving the biggest benefit. She maintained that the program, which is overseen by the Department of Agriculture, doesn't restrict mushroom growers from speaking and doesn't provide political statements.

The hearing continues.

News source: Advertising Age - Daily Deadline