Another day, another agricultural bill influenced by multinational corporations.
Over a dozen agricultural commodity groups have pushed the House Committee on Agriculture to include language in the 2017 House Agricultural Appropriations Bill that “urges” the U.S. Department of Agriculture to exempt their promotional and research groups from Freedom of Information Act (FOIA) requests, ensuring that records are inaccessible to the media and other public watchdog organizations.
While most legal professionals familiar with the issue don’t think this language will get past the “grown-ups in the Senate,” many see it as evidence of the incestuous — and possibly illegal — nature of mandated promotional programs and their industry counterparts.
Let us explain.
These promotional and research groups are funded by agricultural producers (i.e. National Cattlemen’s Beef Association and United Egg Producers) in what’s known as a mandatory checkoff program. Every cattle rancher, dairy producer, egg farmer, and hog producer has to pay into the checkoff program, which is supervised by the USDA’s Agricultural Marketing Service. Those funds are responsible for ad campaigns like “Got Milk,” “Beef. It’s What for Dinner,” and “Pork. The Other White Meat.”
Because the USDA oversees the mandatory checkoff programs, the end results (like advertisements) are considered government speech, and thereby subject to FOIA requests.
In early April, more than a dozen agricultural commodity groups wrote to the House Committee on Agriculture pressing for the exemption. According to Fortune, the organizations included the American Beekeeping Federation, the American Mushroom Institute, the National Cattlemen’s Beef Association, the National Milk Producers Federation, the National Pork Producers Council, the National Potato Council, the National Watermelon Association, and United Egg Producers.
The Supreme Court has addressed the mandatory checkoff program twice already.
In a 2001 case regarding the mushroom industry, a court ruled that the program was a violation of the First Amendment because it compelled individual companies to subsidize private speech. After the case traveled through appellate courts up to SCOTUS, the government claimed that checkoffs are not private speech because the secretary of the USDA (a government official) oversees messaging, budgets, and other program finances. After that new argument, SCOTUS kicked the case back down to the lower courts to start over.
“The government didn’t even know whether this was a government program or [if] they were supporting a private program,” says Matthew Penzer, special council for the Humane Society of the United States. “That’s why they didn’t raise it at any of the lower courts.”
In 2005, the issue came back around with cattle. This time, the court decided that checkoffs are, in fact, government speech. Because the Secretary of the USDA has veto power and reviews every word of material, the boards cannot act independently without the government. This means that organizations associated with the checkoffs are subject to FOIA requests.
“After the  ruling, it went back to business as usual,” says Penzer. “It was a steep leaning curve. The USDA had previously seen themselves as babysitters over industry programs…rather than ‘I’m the manager of this program.’ ”
Now, in 2016, there’s speculation that the reason for “urging” the USDA to exempt agricultural commodity groups from FOIA requests is a direct result of a 2015 scandal between the egg industry and a vegan mayo company.
Thanks to emails obtained through a FOIA request, the American Egg Board was exposed for waging a campaign against Hampton Creek, a start-up company that sells the vegan mayonnaise Just Mayo. In a manner befitting of a corporate Bond villain, the egg board referred to the egg-free mayo product as a “crisis” for egg producers and attempted to get Just Mayo removed from Whole Foods altogether.
The controversy led to an investigation by the USDA. Eventually, the American Egg Board CEO, Joanne Ivy, stepped down just a few months after the incriminating emails came to light.
“It’s pretty clear that the checkoff programs have come under increased scrutiny in recent months, rightly so, partly due to the exposé of the American Egg Board and their unethical activities regarding Hampton Creek,” says Michele Simon, executive director of Plant Based Foods Association. “It’s a typical tactic of some members of the animal agriculture industry: Instead of cleaning up their act, their reaction is to try and keep their activities secret.”
Many food activists, like Simon, see these mandatory checkoff programs as part of a broader issue in the food industry. The programs give large industries — such as commercial eggs and dairy — a huge step up in the market.
In one instance, Simon says, the checkoff research funds were used to help Domino’s create extra-cheese pizzas. “There’s a disconnect between government mandated programs that help Domino’s Pizza sell more cheese all while Americans are suffering from diet-related illness that are creating strain on our publicly funded healthcare system,” Simon adds.
As the executive director of Plant Based Foods Association, Simon feels that the checkoff program puts her members at an economic disadvantage, because they don’t enjoy the same generic advertising campaigns that other industries get to promote.
Plus, many independent food producers that are forced to participate don’t want to chip in to the mandated tariffs as they currently exist. Some feel the boards don’t represent their varied interests, especially at the state level.
On May 2, Ranchers-Cattlemen Action Legal Fund (R-CALF), a group of independent cattle producers, filed a First Amendment suit in Montana against the USDA, claiming that proceeds from the federal checkoff fund private speech from the Montana Beef Council — which is a “private entity…not effectively controlled by the government.”
For every cow or pig sold, one dollar goes toward the checkoff fund. Of that dollar, fifty cents goes toward the USDA, which oversees all expenditures; this review by the USDA ensures all campaigns fall under “government speech.” The other fifty cents goes toward state associations, like the Montana Beef Council. In many regions, those state associations are private entities — meaning there’s no relation to the state government, nor is there government oversight.
R-CALF’s members — ranging from ranchers and dairy farmers to feedlot operators and everything in between — aren’t happy with the way the checkoff money is being spent. The group claims their First Amendment rights are being violated by the obligation to pay for private advertising campaigns (the messages with which R-CALF disagrees). The group wants state funds to comply with the same requirement as federal funds filtered through the USDA. They also want a clear avenue of communication for what R-CALF deems appropriate advertising.
R-CALF ultimately wants checks and balances put into place, too. If money is spent inappropriately, the group wants someone to be held accountable, as was the case with the American Egg Board and Hampton Creek.
Funded by the Montana Beef Council, some checkoff funds have gone towards big producers’ interests — like the Wendy’s Ciabatta Bacon Cheeseburger ad. Those state checkoff funds benefited large, multinational packers and producers, says David Muraskin, who is working on the case as the food safety and health attorney for Public Justice. “That’s not impacting small producers,” he says. “It’s not even American Beef.”
The national checkoff has its issues — activist groups claim that there are ties between checkoff programs and lobbying groups in multiple agricultural industries — but because of FOIA, there’s a mechanism to monitor and bring activities to public scrutiny.
The agriculture industry’s latest push for exemption seems to be another extension of their efforts to keep consumers in the dark about practices within commercial farms and the broader industry. Some of these practices include the agriculture industry’s push against country-of-origin labeling (which many independent domestic producers support) and the Ag Gag bills that have popped up around the U.S. The latter essentially blocks activists and journalists from documenting what goes on behind closed doors at factory farms.
Still, attorneys don’t believe the agriculture industry will get its way.
“From my legal analysis, the wording is very interesting. It ‘urges’ the secretary [of the USDA] to find them exempt, which is different from exempting them or saying they are exempt,” says Penzer. “If they are exempt, any one of the producers could file a claim saying the secretary makes them ineligible for FOIA…and the secretary doesn’t have lawmaking power.”
The Voice reached out to United Egg Producers and the American Egg Board for comment, but has not received responses by the date of publication.