Updated: Oct 31
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The Ninth Circuit Court of Appeals recently affirmed a U.S. District Court of the District of Montana decision holding that the Montana Beef Council’s and other qualified state beef councils’ (QSBCs) advertisements are exempt from First Amendment scrutiny. The decision is in Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. Vilsack, No. 20-35453 (9th Cir. July 27, 2021).
In 1985, Congress passed the Beef Promotion and Research Act of 1985 imposing a $1 per head assessment on all cattle sold in the United States. This “checkoff” was used to fund promotions to expand domestic and international markets and uses of beef. The Secretary of Agriculture oversees the checkoff program through the Cattlemen’s Beef Promotion and Research Board members. The program operates through a QSBC collecting the checkoff, retaining 50 cents of every dollar to fund the state program, and passing the remaining 50 cents to the federal program. A beef producer may choose to opt-out of funding the QSBC and direct the entire checkoff to the federal program.
Since 2016, the Secretary has worked through the Agricultural Marketing Service (AMS) to enter into memoranda of understanding (MOUs) with QSBCs, giving the Secretary more oversight over the operations of the QSBCs. QSBCs can contract with third parties to produce advertisements and promotional materials, but the Secretary must pre-approve all contracts and plans/projects developed by the third parties. At the same time, QSBCs can also make noncontractual transfers to third parties for promotional materials, and the resulting materials do not need preapproval. At issue, in this case, is whether the noncontractual promotional materials are effectively government speech. R-CALF is arguing these materials are compelled speech protected under the First Amendment.