NPPC Asks for Stay of Order Halting Checkoff By Joe Vansickle, Senior Editor

The National Pork Producers Council (NPPC) has requested that the Justice Department seek a stay of a Michigan court’s Oct. 25 ruling to halt collection of the pork checkoff.

In a teleconference call with the media, NPPC attorney Ed Mansfield related, "We are pursuing our request that they (Justice Department) seek a stay and that decision-making process is in progress."

The decision will be made, probably in a few days, by the Solicitor General’s office of the Department of Justice, he explains. The Solicitor General sought and received a similar stay of last summer’s ruling by a South Dakota judge that the beef checkoff program was unconstitutional. The Eighth Circuit Court of Appeals based in St. Louis, MO granted the stay. That case is currently on appeal.

NPPC CEO Neil Dierks told listeners that in this case the Sixth Circuit Court of Appeals based in Cincinnati, OH would hear the request for a stay.

The request follows an Oct. 25 verdict by Judge Richard Enslen of the U.S. District Court for the Western District of Michigan in which he ruled the mandatory Pork Promotion, Research and Consumer Information Act, launched in 1985, was unconstitutional.

The federal judge called for a halt in the collection of checkoff funds effective Nov. 25.

NPPC President Dave Roper calls the court’s decision into question on three counts:

  1. The court did not recognize the basic government freedom of speech argument guaranteed by the First Amendment. "This is in light of the fact that Congress established the program, and USDA oversees and administers the checkoff program and its activities," he points out.
  2. There appears to be a fundamental misunderstanding by the court of what the checkoff does, the whole concept of pork promotion and how it benefits the pork industry in relationship to its competitors. "The Pork. The Other White Meat campaign has been recognized as one of the most prominent advertising campaigns of all times. It has been very successful, is very generic and basically helps promote pork against other proteins that we compete with in the marketplace," says Roper.
  3. It is unfortunate that four individuals were able to disrupt a program "which has benefited literally thousands of pork producers," attests Roper, a Kimberly, ID, producer. "Even Judge Enslen recognized the positive impact of the program in his ruling when he stated, ‘the pork (checkoff) program has a very positive effect on pork producers.’"

NPPC attorney Mansfield also notes the Michigan judge appeared to miss the mark in his ruling. "There appears to be a fundamental mistake on the part of the judge in his interpretation of what the checkoff does. The court appears to make the statement that branded advertising is used to somehow support the competitors of the individuals who were behind this challenge (Campaign for Family Farms based in White Bear Lake, MN). That’s really not correct, and the evidence will show that, in fact, what is so-called branded advertising is really a relatively small part of the checkoff." Mansfield says about $800,000 annually goes to branded advertising out of an estimated $50 million annual pork checkoff budget.

Rather than hurting pork producers represented by the activists, the pork checkoff program actually benefits them, says Mansfield. "The Texas A&M study, which the judge acknowledged and described in his ruling, concludes that it (checkoff) benefits producers to the tune of approximately $4.79 for each dollar of checkoff funds invested."

NPPC President Roper called the Michigan court’s ruling "disappointing that this has happened this way." But, he adds: "There is a strong case in support of the constitutionality of the pork checkoff program, and we are hopeful that a higher court will rule to overturn the District Court’s decision."

Ultimately, it’s conceivable that most of the commodity checkoff programs currently being challenged may be decided by the Supreme Court, comments Mansfield.

"I think that there is a change in the landscape out here, and I think ultimately there’s going to have to be a decision either by the Supreme Court or by some new direction given by Congress," he observes.