The relentless legal challenges of agricultural marketing orders and commissions promoting consumer by dissident producers and processors is one of the most perplexing issues in agriculture.
The California Table Grape Commission continues spending millions fending off the legal vigilantism. The Washington Apple Commission has all but shut its door because of lawsuits. There have been challenges to the federal cotton marketing order. Other orders quiver ever time a judge rules against a marketing order or commission.
Marketing orders are established when at least two-thirds of the producers and or processors of a crop agree to be assessed to promote consumption of what they produce, sponsor crop research or whatever the stated mission may be.
Elected officials win office with simple majorities.
Commissions and marketing orders require two-thirds approval.
How in the world can a judge toss out the will of two-thirds of the people as a violation of first amendment rights?
Dissidents contend that commissions violate free speech when it collects fees for generic advertising. Some courts have agreed with that. Other courts have not.
Challengers to these marketing order contend they can do a better job of promoting their private brands with the money collected for generic advertising. No one is preventing them from spending their money promoting their own brand. These dissidents do not have the right to forbid other growers from funding a marketing order or commission they believe is serving them well in the marketplace.
What is ludicrous about these challenges is that the assessments are so small they are almost insignificant on a per container basis or as part of the cost of production of the largest farm. They add little to the cost of growing and packing the product, yet when all the funds are pooled they can represent a significant contribution to product promotion.
These lawsuits are nothing more than philosophical challenges, and judges who ruled against marketing orders are doing so without understanding all the facts.
Growers can create or reject commissions. They can continue or kill a marketing order. Some even have provisions that growers must vote periodically on whether to continue the orders. Others have statutes laying out how producers can challenge a commission at any time.
These bodies are managed by elected producers and processors.
It is the most stringent democratic process possible.
Marketing orders exist as long as they provide a service the growers deem worthwhile. Marketing orders have died because they no longer served their purpose. However, for the courts to kill them because of philosophical differences is wrong.
The success of many of these self-help grower efforts is nothing short of astounding. Consumption of almonds, cotton and table grapes to name just three have increased dramatically due to promotional efforts funded by grower assessments.
Some may say consumption would have increased without marketing orders. That is highly doubtful.
American agriculture is struggling to successfully market products against heavy odds created by monetary and international trade policies. The last thing producers funding successful marketing orders and commissions need is to take away one of the most effective tools they have.