(1) To fund these programs, the authorizing statutes (and orders)require that an assessment be collected based on the amount of product that a covered party sells,produces, or imports. Some producers have opposed the use of, or message in, genericadvertisements and have brought First Amendment challenges in court, three of which the SupremeCourt has decided. The Supreme Court's first two attempts at addressing First Amendment challenges tocheck-off programs -- California fruits and mushrooms, respectively -- resulted in contrastingopinions and some confusion for lower courts. In May 2005, the Supreme Court issued its third opinion in eight years regarding theconstitutionality of a check-off program (beef). This report begins with a brief introduction on check-off programs and then describes theapplicable First Amendment principles argued in many of the check-off cases. Next is an analysisof the first two challenges that reached the Supreme Court, as well as a brief discussion ofsubsequent appellate court decisions. This report concludes with a discussion of Johanns v.Livestock Marketing Association and its possible implications for check-off programs. Check-off Programs

Congress has provided for the generic promotion of farm products since the 1930s. Generally,opponents argue that they should not be required to pay for advertisements with which they disagree. )violated the First Amendment. (37) 

		Recent Supreme Court Decision: Johanns v. Livestock Marketing Association

In Johanns v. Livestock Marketing Association , the Supreme Court, in a 6-3 opinion, ruledthat the beef check-off funds the government's own speech, and it is therefore not susceptible to aFirst Amendment compelled-subsidy challenge. Possible Implications of Johanns v. Livestock Marketing Association

The Supreme Court's decision to uphold the beef check-off program on the "governmentspeech" doctrine is likely to have far-reaching implications for check-off programs.
For decades, Congress has enacted laws authorizing generic promotion programs for anumber of farm products to increase overall demand and consumption of the agricultural product. These generic promotion programs, commonly known as "check-off" programs, are funded throughthe payment of mandatory assessments imposed on the amount of product that a covered party sells,produces, or imports. Some producers have opposed the use of generic advertisements and havebrought First Amendment challenges in court. Generally, these parties claim that they should notbe required to pay for advertisements (i.e., speech ) with which they disagree.
The Supreme Court has ruled on the constitutionality of check-off programs three times inthe last eight years, the most recent of which occurred in May 2005. The Court's first two attemptsat addressing First Amendment challenges to check-off programs resulted in contrasting outcomesand some confusion for lower courts. In Johanns v. Livestock Marketing Association , the SupremeCourt's third and most recent decision concerning a check-off program (beef), the Court ruled thatthe generic advertising under the program was the government's own speech, and was therefore notsusceptible to the First Amendment challenge before it. The Supreme Court's decision was basedon grounds that had not been previously addressed by the Court in the earlier check-off cases andmay have far-reaching effects. For example, three circuit court rulings that invalidated othercheck-off programs have already been vacated by the Court for reconsideration in light of Johanns .
This report begins with a brief introduction to check-off programs and then describes manyof the First Amendment principles that have been discussed in check-off cases. Next is an analysisof the first two challenges that reached the Supreme Court, as well as a brief discussion ofsubsequent lower court decisions. This report concludes with a discussion of Johanns v. LivestockMarketing Association and its possible implications for check-off programs. This report will beupdated as warranted.