KANSAS CITY (B)--The Livestock Marketing Association, along with eight individual cattle producers and the Western Organization of Resource Councils, filed an amended complaint Aug. 3 in South Dakota Federal District Court. The complaint asks the Court to declare that the beef checkoff violates cattle producers' First Amendment rights to freedom of speech and association.

LMA said it filed the amended complaint in response to a request by the court to address the impact of the U.S. Supreme Court's recent decision which held that a nearly identical checkoff program in the mushroom industry violated the First Amendment.

In response to the court's request, attorneys for LMA, the U.S. Department of Agriculture and the Cattlemen's Beef Board submitted a joint statement. That statement informed the Court that "the parties are in agreement that the issue regarding the constitutionality of the beef checkoff program called into question by the Supreme Court's recent decision...needs to be resolved prior to proceeding" with LMA's request for a referendum, which had been the focus of its initial complaint.

If the checkoff is held to be constitutional, LMA said it will ask the court to order a producer referendum. LMA and the other plaintiffs told the Court that under the First Amendment, the beef checkoff may not "underwrite and sponsor speech with a certain viewpoint," funded by the checkoff, from producers, "some of whom object to the ideas being advanced."

The plaintiffs told the court they object to several elements of the advertising and promotion programs funded by the checkoff, including the generic promotion of beef, as opposed to promoting beef raised in the US. They also object to the funding of ads promoting and supporting "generic, brand-name and/or processed beef products which may directly benefit private corporations, beef packers, and beef retailers, rather than cattle producers."

The amended complaint also says the checkoff violates the plaintiffs' First Amendment right to freedom of association because NCBA, which is a private trade association, "enjoys a virtual monopoly of the...contracts for implementing and carrying out" checkoff-funded domestic activities.

The complaint also identifies similarities between the beef checkoff and the mushroom checkoff, LMA said. "The beef industry is identical to the mushroom industry in that beef is not marketed under detailed marketing orders...cattle producers are not bound together and required by statute to market their products according to cooperative rules," and they are free to make their own marketing decisions. "Their freedom to act independently is not constrained by any regulatory scheme and they are not part of any broader collective enterprise," the complaint says.

LMA President Patrick Goggins said a close review of the Supreme Court's new mushroom decision "led us to the conclusion that the beef checkoff clearly violates the free speech and free association provisions of the First Amendment. Secondly, no one can seriously argue that the cattle industry is not just as much a free market as the mushroom industry.

"Therefore, we had no choice but to respond to the Court by requesting that it declare the checkoff unconstitutional." Goggins said. "If the Court decides not to do that, we're asking for what we've always asked for: a producer vote on a program producers have been financing for years."

Monte Reese, chief executive officer of the Cattlemen's Beef Promotion and Research Board, contends the mushroom and beef checkoff programs are not alike. He said the mushroom industry is not heavily regulated as are the cattle and beef industries. Also, the mushroom checkoff program specified that mushroom handlers pay for the program, not producers.

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