There was a significant development last week in a lawsuit that is seeking to eradicate a major source of funds used to prop up factory farming of meat.
The lawsuit is centered around the checkoff program, a system that requires ranchers and farmers to contribute money from every animal sold to promote industry advertisements such as “Beef. It’s What’s for Dinner” and “Pork. The Other White Meat.” Currently, there are eighteen commodity checkoff programs for items ranging from beef to blueberries. But as the Voice explained this summer, many smaller independent farmers and ranchers say their dues are going to fund initiatives that benefit huge industrial suppliers, not them. Last month, the government retreated half a step, acknowledging that farmers can’t be forced to participate. Critics say that’s not good enough.
This current case, which focuses on the system in Montana but would set a national precedent, was filed against the US Department of Agriculture by Ranchers-Cattlemen Action Legal Fund (R-CALF), a group of smaller producers who object to being forced to pay one dollar per animal towards the communal checkoff pot. That may not sound like much, but in the industrial system an individual cow is typically sold at least three times during the course of its life. Each time is passes hands, a dollar goes into the coffer. That adds up to around $80 million a year.
For each dollar transaction, fifty cents goes to the USDA, which supervises all expenditures. This means those promotions qualify as “government speech,” so there’s some semblance of accountability. Freedom of Information Act requests can be filed to find out how money is being spent. If a group doesn’t agree with the speech, industry groups or voters can lobby the Secretary of Agriculture for a change. The other fifty cents goes toward state associations that in many regions — including New York and New Jersey — are private agencies unrelated to the government, and therefore not subject to the same accountability.
Those messages often conflict with the interests of small-scale producers, who are nonetheless required to subsidize them. In Montana, which ranks eleventh in the US for cattle inventory, five of the twelve members on the Montana Beef Council board are connected to lobbying groups for multinational corporations. That’s a problem, says David Muraskin, the lawyer representing R-CALF in its lawsuit. In 2014, the agency paid for a Wendy’s Ciabatta Bacon Cheeseburger ad campaign, equivalent to a marketing slap in the face to the state’s independent ranchers and farmers. “Wendy’s uses North American beef, from anywhere on the the continent,” says Muraskin. “It’s not from Montana and it’s almost certainly not U.S. beef, because U.S. beef is more expensive.”
There’s big money at stake: Last year, the state sold 1.6 million heads of cattle, garnering $800 thousand for the Montana Beef Council. The number is projected to increase by 50 percent this year, bringing in an estimated $1.2 million in revenue for the organization. The New York State Beef Industry Council got $26,982 from the 650,000-plus cows sold in the state. In New Jersey, 9,000 cattle were sold.
“The cattle industry doesn’t receive any direct government price support like corn, wheat, or cotton,” says Bill Bullard, CEO of R-CALF. “U.S. producers are forced to pay for marketing and promotion of competitors’ beef.”
In a filing last month, the government tried a new tack in an effort to dismiss the Montana lawsuit, noting that the USDA was now acknowledging — deep in the fine print of the Federal Register on July 15 — that for two decades it has been wrongly informing ranchers that they were required to turn their money over to private state councils that control many of the meat advertisements. The agency said it will soon issue new rules which would allow ranchers and farmers to steer their money away from the private councils and into publicly controlled USDA hands.
But as the document goes on to explain, the program isn’t cancelled — ranchers will have to actively opt out, submitting a written request on an approved form, postmarked no more than fifteen days after the sale of the cattle in question, possibly multiple times per month.
R-CALF argues that this new process is too burdensome, that it continues to subsidize mulitnational corporations at the expense of independent farmers and ranchers, and that, moreover, it’s unconstitutional. The group cites a 2012 Supreme Court case, Knox v. Service Employees International Union Local 1000, which held that where the government is forcing individuals to turn over money to fund private speech, an opt-out option isn’t good enough. Affirmative consent is required before any funds are given to the private entity.
“When money is being used solely for speech, you can’t assume someone is going to waive their right and send to a private organization,” says Muraskin. “It would be like the government taking my money and turning it over to the Trump campaign.”
When contacted, the USDA’s press office told the Voice it would not comment on the case.
The Montana lawsuit is only the most recent instance of the checkoff program coming under scrutiny. Last year, a FOIA request revealed that the government was overseeing a campaign by the American Egg Board to get a vegan mayonnaise company’s product yanked from Whole Foods shelves. Following the scandal, Senators Cory Booker (D-New Jersey) and Mike Lee (R-Utah) introduced S. 3201, the Commodity Checkoff Program Improvement Act of 2016, with the goal of bringing transparency to the federal (USDA-overseen) checkoff program. While that bill might help with half the funds controlled by the USDA, it would do nothing for the half that goes to private state councils like the Montana Beef Council.