No. 99-439
In the Supreme Court of the United States
NATURE'S DAIRY, ET AL., PETITIONERS
v.
DAN GLICKMAN, SECRETARY OF AGRICULTURE, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney
General
BARBARA C. BIDDLE
JEFFRICA JENKINS LEE
Attorneys
Department of Justice Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether milk producers may, consistent with the First Amendment, be required
to fund a generic advertising and promotion program for fluid milk and dairy
products under an agricultural marketing order similar to that upheld in
Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 (1997).
In the Supreme Court of the United States
No. 99-439
NATURE'S DAIRY, ET AL., PETITIONERS
v.
DAN GLICKMAN, SECRETARY OF AGRICULTURE, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-8a) is unpublished, but
the judgment is noted at 173 F.3d 429 (Table). The opinion of the district
court (Pet. App. 9a-16a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on March 2, 1999. A petition
for rehearing was denied on June 11, 1999 (Pet. App. 19a-20a). The petition
for a writ of certiorari was filed on September 9, 1999. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. In the Dairy and Tobacco Adjustment Act of 1983, Pub. L. No. 98-180,
Tit. I, 97 Stat. 1136-1150 (codified at 7 U.S.C. 4501-4514 (1994 & Supp.
IV 1998)) (Dairy Act), Congress declared that the "public interest"
would be served by a "coordinated program of promotion" of milk
and dairy products produced in the United States. 7 U.S.C. 4501(b). Congress
perceived that such a program could "strengthen the dairy industry's
position in the marketplace" and "maintain and expand domestic
and foreign markets and uses" for its products. Ibid.
Accordingly, Congress directed the Secretary of Agriculture to promulgate
a marketing order that would "provide for the establishment and administration
of appropriate plans or projects for advertisement and promotion of the
sale and consumption of dairy products, for research projects related thereto,
[and] for nutrition education." 7 U.S.C. 4504(a). The marketing order
was to be administered by a National Dairy Promotion and Research Board
(Dairy Board) composed of at least 36 members, all milk producers, to be
appointed by the Secretary. 7 U.S.C. 4504(b).1 The activities of the Dairy
Board were to be financed by an assessment on dairy producers of 15 cents
per hundredweight of milk produced for commercial use. 7 U.S.C. 4504(g).2
In 1984, the Secretary, acting pursuant to the Dairy Act, promulgated the
Dairy Promotion and Research Order (Dairy Promotion Order). See 7 C.F.R.
Pt. 1150. The Dairy Promotion Order established the Dairy Board, delineated
its powers and duties, and imposed an assessment, at the statutory rate
of 15 cents per hundredweight, on all milk produced in the 48 contiguous
States for commercial use. See 7 C.F.R. 1150.131, 1150.139, 1150.140, 1150.152.
Congress required the Secretary to conduct a referendum of milk producers
in 1985 to determine whether the Dairy Promotion Order should remain in
effect. 7 U.S.C. 4506. The Secretary is also required to conduct such a
referendum whenever ten percent of milk producers request one. 7 U.S.C.
4507(b). In 1985 and again in 1993, a majority of milk producers voted in
favor of the Dairy Promotion Order. See Pet. App. 3a.3
2. Petitioners are milk producers subject to the Dairy Promotion Order.
In June 1996, they filed a complaint alleging that the mandatory assessments
infringe their First Amendment rights of freedom of speech and freedom of
association. Pet. App. 10a; Pet. 4.4
The matter came before the district court for resolution on cross-motions
for summary judgment. The court found this case to be legally indistinguishable
from Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 (1997),
which held that the First Amendment was not implicated by a marketing order
that imposed compulsory assessments on handlers of California peaches, nectarines,
and plums to fund generic advertising of those fruits. Pet. App. 12a-13a.
The court noted that Wileman Brothers had rejected each of petitioners'
First Amendment arguments: i.e., that a mandatory assessment for generic
advertising "restrains producers from communicating some messages to
some audiences," "compels producers to engage in actual or symbolic
speech," and "compels the producers to finance disagreeable political
and ideological views." Id. at 13a.
The district court, following this Court's analysis in Wileman Brothers,
concluded that the generic advertising program established by the Dairy
Act serves "legitimate economic purposes" as part of a regulatory
scheme designed to "strengthen[] the dairy industry's position in the
marketplace and maintain[] and expand[] markets and uses for fluid milk
and dairy products." Pet. App. 14a (quoting 7 U.S.C. 4501(b)). The
court also pointed out that the generic advertising program does not "bar[]
[petitioners] from using their own funds for advertising" or "require[]
them to engage personally and directly in advertising." Id. at 14a-15a.
Nor does the generic advertising program "restrict [petitioners'] right
to communicate any message, compel [them] to engage in speech, or compel
them to endorse any political views with which they disagree." Id.
at 15a. Accordingly, the court held that the generic advertising program
"clearly survive[d]" petitioners' First Amendment challenge. Ibid.
The district court rejected petitioners' attempt to distinguish this case
from Wileman Brothers on the ground that the marketing order in that case
comprehensively regulated the affected commodities, whereas the marketing
order in this case deals only with promotion, research, and nutrition education
programs. The court found "nothing in the Wileman opinion that would
indicate that it is inapplicable to a stand alone program such as the Dairy
Program." Pet. App. 12a. The court added that "[d]airy products,
like tree fruit, are subject to extensive governmental regulation."
Ibid. The court specifically identified the regulation of the prices received
by dairy producers under the Agricultural Marketing Agreement Act of 1937,
7 U.S.C. 601 et seq., and the regulation of milk price supports under the
Federal Agricultural Improvement and Reform Act of 1996, 7 U.S.C. 7251 et
seq. Pet. App. 12a-13a.
Accordingly, the court granted the government's motion for summary judgment
and dismissed petitioners' complaint in its entirety. Pet. App. 17a-18a.
3. The Sixth Circuit affirmed in an unpublished opinion that adopted the
district court's reasoning in full. Pet. App. 1a-8a.
The court of appeals, like the district court, found no "constitutionally
significant distinction" between the generic advertising program upheld
in Wileman Brothers and the generic advertising program challenged in this
case. Pet. App. 7a. The court agreed that "the Dairy Promotion Program,
similar to the program in [Wileman Brothers], is part and parcel of a legitimate
regulatory scheme for promotion of commodities." Ibid. The court added
that the dairy promotion program does not "impose any restraint upon
a producer from communicating any message to any audience," require
any producer "to engage in actual or symbolic speech," or "compel
any producer to endorse or fund any political or ideological view."
Ibid.5
ARGUMENT
The Sixth Circuit's unpublished decision is correct, is compelled by this
Court's decision in Glickman v. Wileman Brothers & Elliott, Inc., 521
U.S. 457 (1997), and is consistent with the decisions of other courts of
appeals. No reason therefore exists for this Court to revisit the constitutionality
of federal programs requiring producers or distributors of an agricultural
commodity to share the costs of its generic advertising. Indeed, the Court
has twice since Wileman Brothers denied petitions for writs of certiorari
in cases raising such issues. See Goetz v. Glickman, 119 S. Ct. 867 (1999);
Cal-Almond, Inc. v. Department of Agric., 119 S. Ct. 57 (1998).
1. This Court's decision in Wileman Brothers is dispositive of petitioners'
challenge to the generic advertising program established by the Dairy Act.
In Wileman Brothers, the Court held that regulations creating a generic
advertising program for California peaches, nectarines, and plums, paid
for by mandatory assessments on handlers of those fruits, did not implicate
the First Amendment. The Court identified three factors that distinguish
such generic advertising programs from laws that abridge freedom of speech
in violation of the First Amendment. First, generic advertising programs
"impose no restraint on the freedom of any producer to communicate
any message to any audience." 521 U.S. at 469. Second, generic advertising
programs "do not compel any person to engage in actual or symbolic
speech," because persons "are not required themselves to speak,
but are merely required to make contributions for advertising." Id.
at 469, 471. And third, generic advertising programs "do not compel
the producers to endorse or finance any political or ideological views."
Id. at 469-470. The Court explained that requiring the members of an industry
to pay assessments for generic advertising, which does not promote "any
particular message other than encouraging consumers to buy [their product],"
does not "engender any crisis of conscience" or otherwise interfere
with any "freedom of belief." Id. at 471-472.
The generic advertising program in this case is, as the courts below recognized
(Pet. App. 7a, 12a-13a), legally indistinguishable from the generic advertising
program in Wileman Brothers. Both generic advertising programs are part
of larger regulatory schemes for promotion, research, and consumer education
involving their respective commodities. Compare 7 U.S.C. 608c(6)(I) with
7 U.S.C. 4502, 4504 (1994 & Supp. IV 1998). Both generic advertising
programs are implemented by committees of individuals in their respective
industries and funded by assessments paid by members of those industries.
Compare 7 U.S.C. 608c(6)(I), 610(b)(2)(ii) with 7 U.S.C. 4504(b) and (g).
And both generic advertising programs provide mechanisms by which members
of the industry can seek to modify or terminate those programs. Compare
7 U.S.C. 608c(16) (A)(i) and (B), 608c(15)(A) with 7 U.S.C. 4507(a) and
(b), 4509. Accordingly, like the generic advertising program in Wileman
Brothers, the generic advertising program here is simply "a species
of economic regulation," 521 U.S. at 477, that does not warrant special
First Amendment scrutiny.
2. Petitioners attempt (Pet. 5) to distinguish Wileman Bros. on the ground
that the generic advertising program for milk and dairy products, as opposed
to the generic advertising program for California tree fruits, "is
not part of a broader collective enterprise." Petitioners' argument
is both factually and legally untenable.
First, in the dairy industry, as in the tree fruit industry, Congress has
"displaced many aspects of independent business activity." 521
U.S. at 469. As the Senate Report on the Dairy Act noted, "[f]ederal
[regulatory] programs have been deeply imbedded in the economic fabric of
the United States dairy industry for more than 40 years." S. Rep. No.
163, 98th Cong., 1st Sess. 13 (1983). The Senate Report specifically identified
four such programs: "[t]he dairy price support program which explicitly
puts a floor under the price of manufacturing grade milk and thus maintains
a floor under all milk prices"; "[t]he milk marketing order program
which establishes minimum prices for fluid grade milk in most parts of the
country"; "[i]mport controls which protect the price support program";
and "[f]ederal cooperative policy which encourages the development
of farmer-owned cooperatives." Ibid.; cf. Block v. Community Nutrition
Inst., 467 U.S. 340, 341-343 (1984) (describing the milk marketing order
program); Zuber v. Allen, 396 U.S. 168, 172 (1969) (noting "the labyrinth
of the federal milk marketing regulation provisions").6
Second, nothing in this Court's opinion in Wileman Brothers provides any
justification for the distinction proposed by petitioners between marketing
orders that deal only with promotion, research, and consumer education programs,
as in this case, and marketing orders that regulate a commodity more comprehensively,
as in Wileman Brothers. To the contrary, the Court granted certiorari in
Wileman Brothers for the express purpose of resolving the conflict between
the Ninth Circuit's decision in that case and the Third Circuit's decision
in United States v. Frame, 885 F.2d 1119 (1989), cert. denied, 493 U.S.
1094 (1990). See 521 U.S. at 466-467. Frame, like the present case, involved
a First Amendment challenge to a statute, the Beef Promotion and Research
Act of 1985 (Beef Act), 7 U.S.C. 2901-2911, that deals only with "promotion
and advertising, research, consumer information, and industry information"
programs. 7 U.S.C. 2904(4)(B); see Frame, 885 F.2d at 1122-1123 (describing
the Beef Act and noting that its "promotion and research programs"
are "identical in most respects" to those for milk and dairy products
under the Dairy Act and for six other commodities under other statutes).
Surely, then, the Court understood Wileman Brothers as addressing the constitutionality
not only of the particular generic advertising program in that case, but
also of similar generic advertising programs involving other regulated commodities,
whether those commodities are regulated by a single statute or marketing
order or by multiple statutes or marketing orders.
Petitioners cite no decision of any court, and we are aware of none, adopting
the distinction they propose between generic advertising programs established
by marketing orders that regulate a commodity comprehensively and those
established by marketing orders that regulate a commodity only in particular
respects. The lower courts have relied on Wileman Brothers to sustain generic
advertising programs established under statutes and marketing orders that
deal only with promotion, research, and consumer education programs. See
Gallo Cattle Co. v. California Milk Advisory Bd., 185 F.3d 969, 974-978
(9th Cir. 1999) (rejecting a First Amendment challenge to the generic advertising
program established by the State of California's Marketing Order for Research,
Education and Promotion of Market Milk and Dairy Products); Goetz v. Glickman,
149 F.3d 1131, 1139 (10th Cir. 1998) (rejecting a First Amendment challenge
to the generic advertising program established by the Beef Act), cert. denied,
119 S. Ct. 867 (1999). Indeed, in Gallo Cattle, a milk producer argued,
as petitioners do here, that "because th[e] single marketing order
[at issue] does not regulate the milk producers to the extent that the marketing
order in Wileman regulated the tree fruit growers, Wileman is inapplicable."
185 F.3d at 974-975 n.5. The Ninth Circuit rejected as "specious"
the milk producer's "attempt to limit the focus to a single marketing
order rather than the entire regulatory scheme," concluding that "[o]ur
approach of focusing on the overall regulatory scheme rather than on whether
all regulations are contained in a single marketing order is entirely consistent
with Wileman." Ibid.
3. Finally, petitioners' complaints (Pet. 14) about the wisdom and efficacy
of the dairy promotion program present no issue for the Court's review.
As the court of appeals concluded, "in the absence of constitutional
infirmity, this Court must defer to the judgment of Congress" that
the dairy promotion program serves the public interest. Pet. App. 8a; see
Wileman Bros., 521 U.S. at 474 ("Although one may indeed question the
wisdom of such a program, its debatable features are insufficient to warrant
special First Amendment scrutiny."). Nor are petitioners without means
to seek the termination or modification of the Dairy Promotion Order through
the political process. See, e.g., 7 U.S.C. 4507(b).7
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney
General
BARBARA C. BIDDLE
JEFFRICA JENKINS LEE
Attorneys
NOVEMBER 1999
1 Only milk producers (defined in the statute as persons engaged in the
production of milk for commercial purposes, 7 U.S.C. 4502(h)) are eligible
to serve on the Dairy Board. The Secretary appoints members from among nominees
submitted by organizations that have been certified to represent milk producers.
7 U.S.C. 4505. The Secretary may also appoint members to the Board other
than from nominations of such certified organizations if the Secretary determines
that a substantial number of milk producers are not members of, or their
interests are not represented by, those organizations. 7 U.S.C. 4504(b).
2 Assessments are actually collected by milk handlers, i.e., persons who
purchase milk from milk producers for processing. 7 U.S.C. 4504(g). A producer
who markets his own milk is responsible for remitting the required assessments
to the Dairy Board. Ibid.
3 In addition, the Secretary may terminate the Dairy Promotion Order on
his own initiative if he determines that the Order no longer "tend[s]
to effectuate the declared policy" of the Dairy Act. 7 U.S.C. 4507(a).
4 The original complaint and the first amended complaint sought an order
enjoining the Secretary and the Dairy Board from collecting or spending
assessments from petitioners and a refund of any assessments previously
collected from petitioners. On the government's motion, the district court
dismissed the action for lack of jurisdiction because petitioners had failed
to exhaust their administrative remedies as mandated by the Dairy Act. 7
U.S.C. 4509(a). The court, over the government's objection, later granted
petitioners leave to file a second amended complaint directly challenging
the constitutionality of the Dairy Act itself. Pet. App. 10a n.1.
5 On appeal, the government renewed its argument that the district court
lacked subject matter jurisdiction because petitioners had failed to exhaust
their administrative remedies. The court of appeals upheld the district
court's determination that petitioners were not required to exhaust administrative
remedies because they were challenging "the constitutionality of the
entire statute." Pet. App. 5a.
6 Even the Dairy Act itself imposed regulations on the dairy industry aside
from those at issue here. In particular, the Dairy Act established sliding
levels of price supports for milk, directed the Secretary to provide a temporary
reduction in the price received by producers for all milk marketed commercially,
and required the Secretary to implement a paid diversion program. Pub. L.
No. 98-180, § 102, 97 Stat. 1128 (formerly codified at 7 U.S.C. 1446(d)(1)
(Supp. I 1983)).
7 While petitioners suggest (Pet. 3, 12-13) that the bloc voting procedures
improperly influence the outcome of any producer referendum, they raised
no direct legal challenge to those pro-cedures in the courts below. In any
event, the validity of such bloc voting procedures has been consistently
upheld against a variety of legal challenges. See, e.g., United States v.
Rock Royal Coop., 307 U.S. 533, 578 (1939); Cecelia Packing Corp. v. United
States Dep't of Agric., 10 F.3d 616, 621-625 (9th Cir. 1993).