KANSAS CITY (B)--The Sixth Circuit Court of Appeals has refused a government request to reconsider its late 1999 decision that the Mushroom Promotion Act was unconstitutional, leaving other promotion programs, including the highly publicized beef and pork programs, in jeopardy.

In a website analysis of the decision, attorneys Wayne Watkinson and Richard Rossier of McLeod, Watkinson & Miller, said another Supreme Court ruling analyzing the constitutionality of commodity promotion laws may come soon.

That law firm is closely tied to most of the current checkoff programs, having written or helped write nearly all of them. Checkoff programs assess producers a specific fee, which is then used to promote their products here and abroad.

In late 1999, the court struck down the Mushroom Promotion Act of 1990 as a violation of the First Amendment. United Foods Inc. v. United States was the first appellate decision to restrict the Supreme Court's 1997 decision in Glickman v. Wileman that commodity promotion laws do not violate the First Amendment, the attorneys said.

In its decision, the Sixth Circuit tried to distinguish the facts of United Foods from those underlying Wileman, in which the court held that the California tree fruit promotion program was constitutional. Many saw the effort as unconvincing, and the government sought to have the entire Sixth Circuit reconsider the matter.

Several grounds for seeking a reversal of this decision by the Supreme Court are evident, the attorneys said in their review. One possible ground is that the decision seems to be at odds with the 1998 decision in Goetz v. Glickman, in which the Tenth Circuit upheld the constitutionality of the Beef Promotion Act in the face of a First Amendment challenge. The Supreme Court later rejected the challenger's efforts for a review.

With the rejection of the government's effort to have the entire Sixth Circuit review the decision of the United Foods panel, the matter now sits squarely with the U.S. Solicitor General who must decide whether to seek a Supreme Court review. Weighing in the balance are the potential effects of this decision on other commodity promotion programs.

It would appear that United Foods would be a likely candidate for review since the Sixth Circuit struck down an act of Congress as unconstitutional.

Others, however, argue that the mushroom industry is too small and the facts underlying the case too unique to make the case an ideal candidate for a Supreme Court petition. They suggest the government should wait for another case with much broader application before it pursues and appeal to the Supreme Court.

The attorneys advised the Solicitor General to consider appealing "to avoid uncertainty and confusion that will likely be visited upon all commodity promotion organizations and to avoid an anticipated onslaught of constitutional challenges to state and federal generic promotion programs."

The firm's website is www.AgricultureLaw.com.

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