NOVEMBER-DECEMBER 1996

Interview With Secretary Dan Glickman

What's In Store For Agriculture In 1997

It is customary for The Agricultural Law letter to occasionally interview leading agricultural policy makers, including Agriculture Committee Chairmen and Secretaries of Agriculture. For this issue, we are honored to publish our Jan. 15, 1997 interview with Secretary of Agriculture Dan Glickman. Glickman was sworn in as the 26th U.S. Secretary of Agriculture on March 30,1995. Prior to his confirmation, he served in the United States House of Representatives for 18 years, representing Kansas Congressional District. Glickman was the original author of the House legislation to reorganize, the USDA, and after becoming Secretary, helped to downsize and streamline the Department.

A.L.L. - Now that the"Freedom to Farm" concepts that were included in the FAIR Act are driving U.S. agricultural policy, do you foresee the need for any modifications to the legislation, and will the Administration advance those changes in the 105th Congress?

SECRETARY GLICKMAN - The FAIR Act redefined the relationship USDA has with America's farmers and ranchers and ushered in some of the most significant changes in farm legislation in more than 60 years. It contains new tools - such as the Fund for Rural America, the Environmental Quality Incentives Program, and the Revenue Insurance Pilot Program - that we will fully utilize to create new economic opportunities, to protect our environment and the productivity of our farmers, and to help farmers manage risk. But it also ended the role government has had in sharing farmers' production and marketing risks. President Clinton signed this bill with reluctance because it fails to provide the safety net for family farmers we envisioned. We are reviewing our legislative agenda for the 105th Congress with a focus on recapturing an adequate safety net for our farmers and ranchers in areas of risk management, farm credit, and basic commodity programs. In addition, we will be seeking authorization for agricultural research programs.

A.L.L. - If you don't plan any major changes in the farm policy enacted last year, do you plan any major initiatives to make it easier for farmers to sell in world markets? Shouldn't there be freedom to export, just as there is now freedom to farm?

SECRETARY GLICKMAN - As it has for over 50 years, USDA will help farmers sell in world markets, with the goal of surpassing current record high levels. The principal USDA agency involved in export promotion is the Foreign Agricultural Service (FAS). Its system of agricultural representatives in U.S. embassies around the world makes USDA one of the best agricultural export promotion organizations in the world.

The Uruguay Round Agreement on Agriculture, which puts limits on agricultural subsidies and market access barriers for the first time, is a recent example of the work the Clinton Administration has done to create freedom to export. We will continue to expand trade opportunities in the Midterm Review of the General Agreement on Tariffs and Trade (GATT) and through other agreements such as the North American Free Trade Agreement (NAFTA), Asian Pacific Economic Cooperation (APEC), and bilateral trade agreements, including trade and technical exchange discussions with such countries as Russia, India, South Africa, Mexico and Israel.

A.L.L. - Recent press reports on the WTO Ministerial and other trade-related events have begun to focus on the upcoming GATT negotiations on agriculture in 1999. They indicate that more domestic support programs outside of traditional farm price supports may come under the discipline of international trade accords.

A) What types of domestic programs do you believe will be addressed in the negotiations?

B) Specifically, what U.S. domestic programs would fall into these categories?

C) Are there any U.S. domestic programs that may fit into the subject categories that you are unwilling to subject to potential reduction under international accords?

SECRETARY GLICKMAN - In the area of domestic support, our objective has always been to encourage countries to use income support measures that are not tied to production, so that production decisions are less trade distorting. In the parlance of the WTO, these types of policies are called "green box" policies, and in the Uruguay Round no specific domestic support policy was prohibited. However, policies that do not meet "green box" criteria are subject to the reduction commitments for domestic support. The United States has already far exceeded the reduction in domestic support required by the Uruguay Round, especially with the enactment of the FAIR Act. We will be encouraging all countries to follow our lead and adopt farm income support policies that do not distort market signals.

A. L. L. - Perhaps the most contentious agricultural trade issue that has developed between the U.S. and Canada is the NAFTA dispute panel's recent unanimous decision to uphold Canada's high tariffs on U.S. dairy products, eggs, barley and margarine products. When the NAFTA panel's decision was announced, you issued a strong statement of objection and pledged to "do everything possible, consistent with our trade laws, to seek the elimination of these duties." Is there anything that the U.S. can do to remove these tariffs in light of the fact that one of Canada's arguments was that the U.S. imposes the very same kind of over-quota tariffs on Canadian exports of sugar, sugar-containing products, dairy products, and peanut butter?

SECRETARY GLICKMAN - We are extremely disappointed by the Panel's ruling, and while our immediate legal recourse on this issue is limited, we continue to have concerns about the manner in which Canada operates its supply management systems for dairy and poultry. Such systems affect both imports and exports, and we intend to pursue other avenues to obtain free and fair trade with Canada. Concerning the U.S. tariff-rate quotas on Canadian products, we were prepared to accept the implications of a favorable panel ruling. The existence of U.S. tariff-rate quotas was not a factor in the Panel's decision.

A.L.L. - Another trade controversy is the EU Equivalency Directive. The current deadline for reaching agreement on inspection equivalency with the European Union for a number of agricultural products, including egg products, is January 1, 1997. With respect to egg products, negotiations have been ongoing for two years, yet no agreement has been reached and the U.S. has been continually stalled by the EU Commission and its negotiators.

Beyond a possible 90-day extension, what kind of assurance can USDA provide that it will be able to negotiate a workable equivalency system with the EU Commission and avoid a costly disruption in trade?

SECRETARY GLICKMAN - As part of the 1992 single market initiative, the EU harmonized its animal and public health standards. In harmonizing these standards, the EU introduced new import controls for these products that threatened to disrupt U.S. exports to the EU. Consequently, the implementation of these new import requirements, which were to be effective at the end of 1993, were postponed numerous times (the most recent to April 1997) to allow for the completion of the equivalency negotiations.

For the past two years, the United States and the EU have been working toward a bilateral agreement to facilitate trade in animal and animal products (approximately 40 product areas) by establishing a framework for recognizing equivalency between U.S. and EU sanitary measures. The draft agreement incorporates the provisions for equivalence included in the Uruguay Round Sanitary and Phytosanitary (SPS) Agreement).

The preservation of U.S. trade is of utmost importance to USDA. Recently, the EU has taken action to delay to April I the application of certain veterinary directives that would have had a negative effect on U.S. exports. However, this action does not, on its own, guarantee that trade disruptions will not occur. Consequently, USDA will continue to address any possible trade disruptions through bilateral channels with individual EU Member States as it works aggressively to reach an overall agreement with the EU by April 1.

A.L.L. - What is the status of the various other trade disputes between the United States and the European Union? What can we expect the EU to do on such issues as the meat hormone-import problem and genetically engineered products, such as Bt corn?

SECRETARY GLICKMAN - We still have many outstanding trade problems with the EU. Since 1989, the EU has banned all imports of beef from animals that have been treated with growth promoting hormones. Last year, we initiated aWTO panel case against this EU policy, and Canada recently initiated a similar case. We expect a ruling from the panel in the Spring. There are also several market access issues regarding rice - concessions resulting from the Uruguay Round and from the accession of three new member states. We have not been able to fully resolve these issues yet, but the EU has indicated its willingness to roll over its 1996 commitments into 1997 to give us time to find a solution. Regarding the longstanding disputes over EU exports of canned fruit and wheat gluten, we have been disappointed in the EU's lack of response, and are pushing for more formal consultations on both of these issues.

We are pleased, however, that in mid-December the EU finally approved the use and marketing of the genetically modified Bt-com. Approval of this product not only protects our com exports to the EU, but - along with the approval of Roundup Ready soybeans in the Spring of 1996 - helps ensure that future decisions of biotechnology products will be based on science and not on emotion.

A.L.L. - Will theAdministration seek the extension of fast-track negotiating authority in Congress? Is the Administration pursuing a new trade agreement with Chile? What other countries are under consideration for special trade treatment?

SECRETARY GLICKMAN - The Administration has indicated its intention to seek fast-track authority from the Congress to pursue new free trade agreements. The Administration remains firm in its commitment to have Chile accede to the NAFTA. Indeed, this effort takes on greater significance for the United States in light of the recentlysigned Canada-Chile agreement. Just what form new fasttrack legislation will take remains to be worked out with the Congress.

A.L.L. - On the campaign trail and in written responses to questions posed to President Clinton by farm groups, he stated that he would work with the new Congress to strengthen the safety net which he believed the FAIR Act weakened. In recent speeches and statements you have amplified this same theme with such statements as:

"We intend to pay an intensive amount of attention in the area of risk management."

"We have a team working on a secretarial initiative on risk management that willprobably involve some legislative proposals."

"Our ongoing risk managementpilotprojects have been tremendously successful, and we expect to expand them!'

A) What is USDA working on in this arena? Should we expect to see anything in the President's budget with respect to these initiatives?

SECRETARY GLICKMAN - Our Risk ManagementAgency (RMA) is developing a coordinated approach to increasing the safety net for farmers through several initiatives that center on program expansion, risk management education, and increased program integrity. Our strategy is to:

1. Clarify the authority to provide revenue insurance on a nationwide basis,
2. Improve the process for submission and approval of new insurance products developed by the private sector,
3. Provide more flexibility for new pilot programs and improvements of existing programs, and incentives for more customer participation and satisfaction, and
4. Launch an aggressive new risk management education program. The budget will be designed to support these initiatives with adequate funding and any new legislation that may be required.

B) Who comprises your risk management team and what opportunities will be provided for the private sector and farm groups to have input into the process?

SECRETARY GLICKMAN - I have convened a subcabinet-level group to act as a steering committee. RMA has taken the lead on legislative initiatives. On risk management education, RMA is working closely with Cooperative, State, Research, Education and Extension Service (CSREES). All efforts will involve the private sector such as futures and insurance industries, grain elevators, commodity groups, and private insurance companies.

C) While you state that you expect to expand risk management pilot projects, why did USDA not approve a proposed expansion of Crop Revenue Insurance in early December that would have afforded farmers ample time to evaluate utilizing the pilot program before the early 1997 sales closing dates?

SECRETARY GLICKMAN - On December 3, 1996, the FCIC Board of Directors approved part of the proposed expansion of Crop Revenue Coverage subject to the condition that necessary management controls are put in place. Additional information is needed on the expansion of corn and soybeans before a final decision can be reached. The action of the Board of Directors is intended to protect the long-term viability of revenue products by assuring that adequate oversight and financial safeguards are in place that will work well both for farmers and for taxpayers.

A.L.L. - While farmers are now recognizing that crop insurance is the sole government-subsidized safety net for producers, no one is talking about the fact that the program is unfunded beginning in the next fiscal year (FY 1998) and current regulations mandate the cancellation of policies if insufficient appropriations are provided.

A) Will USDA seek appropriations for the program for FY 1998?

SECRETARY GLICKMAN - Current law subjects both mandatory and discretionary spending for the crop insurance program to the annual appropriations process. The only difference for fiscal year 1998 is that sales commissions are treated as discretionary spending, whereas in prior years they were included in mandatory spending for which Congress appropriated "such sums as necessary." The budget will provide for both types. of spending, as has been done in prior years.

B) Will the President's budget contain a long-term proposal for permanent mandatory funding of the crop insurance program so it is not subject t*o an annual risk of cancellation.

SECRETARY GLICKMAN - It is correct to assume that the shift of sales commissions from mandatory to discretionary spending increases the "risk of cancellation" because discretionary spending targets are tight. However, legislation to maintain sales commissions as mandatory spending would require a significant offset in other mandatory spending. Similar legislation was included in the 1996 Farm Bill, which maintained sales commissions as mandatory spending for fiscal year 1997. As noted above, the budget will provide adequate funding to support the program in fiscal year 1998 and the Administration will continue to work with the Congress to ensure that such funding is appropriated, either as mandatory or discretionary spending.

A.L.L. - Proposed Conservation Reserve Program rules seem to evoke strong sentiments along regional and commodity lines. Can you give us any insight into how USDA will handle these diverse competing interests?

SECRETARY GLICKMAN - We believe production agriculture and increased farm income are absolutely compatible with the concerns we all share for a clean and healthful environment. The CRP is first and foremost a conservation program, and the rules were created together with the other conservation programs to maximize environmental benefits for every dollar spent as well as serve landowners simply and efficiently.

USDA intends to build upon the successes of previous years by focusing the CRP to conserve and improve our natural resources. We intend to enroll land that will yield the highest environmental benefits while permitting farmers to produce crops on acreage better suited for that purpose. The CRP statute provides this office sufficient flexibility to utilize CRP to address farm income issues as agricultural conditions change.

A.L.L. - What would you like to leave behind as your legacy as Secretary of Agriculture?

SECRETARY GLICKMAN - That we ensure thatAmericans have a healthy, safe, and affordable food supply; that we continue to raise producer income and expand U.S. agricultural trade; that rural Americans have the same economic opportunity and quality of life as urban Americans; that landowners understand and use sound conservation programs; that the United States leads the world in agricultural research; and that USDA is a place where every customer is treated fairly and efficiently, and a workplace where all employees are treated with dignity and respect.

Supreme Court Hears Argument on First Amendment Challenge

Has The Bell Tolled For Federal Commodity Promotion Programs?
By Richard Rossier

Has the bell tolled for federal commodity promotion programs or will they survive a stem First Amendment challenge and remain a key part of federal agricultural law? Those who listened to the animated Supreme Court oral argument on Dec. 2 are not of a single mind on the answer to that important question. By next summer, however, the Court itself will resolve the matter when it issues its decision in Glickman v. Wileman.

Those opposed to these promotion programs have filed numerous lawsuits and petitions over the years challenging these programs on Constitutional grounds. One of those challenges, Glickman v. Wileman, now has made it to the Supreme Court. In Wileman the Supreme Court is reviewing a 1995 decision of the Ninth Circuit holding that the California peach, nectarine, and plum promotion programs violated the First Amendment rights of peach, nectarine, and plum handlers.

Although the Wileman case concerns the California tree fruit promotion program, the Supreme Court's resolution of the case is expected to have an impact on a wide range of federal commodity promotion programs such as the milk processor program (the milk mustache campaign), the milk producer program (the "Got Milk?" campaign) and the beef promotion program (the "Beef--It's What's For Dinner" campaign).

Predicting the Outcome

While the outcome of the argument remains unclear, the issues addressed were vigorously contested not only by the advocates but also by many members of the Court who were very active in questioning the lawyers. In fact, all members of the Court asked multiple questions except Clarence Thomas, who remained stoic and silent throughout.

Based on the questions asked, however, Justices Antonin Scalia and David Souter seem to be the most hostile to the challenged program while Justices Stephen Breyer and John Paul Stevens seemed to be most supportive of its Constitutionality. Also appearing at least somewhat dubious about the programs were Justices Ruth Bader Ginsburg and Sandra Day O'Connor, although Justice O'Connor appeared to also have some serious problems with the legal arguments of the attorney for the challengers. The Chief Justice William Rehnquist and Justice Anthony Kennedy asked questions that suggested that they could end up voting to uphold the challenged program. While Justice Clarence Thomas asked no questions, he tends to vote with Justice Scalia more than any other Justice so most are counting his vote on the same side as Justice Scalia's. Thus, the members of the Court appear to be quite evenly split on the issue. The outcome of the case is therefore too close to call.

Is There An Important Government Interest Here?

During the argument, many difficult questions were quite effectively handled by Alan Jenkins of the Office of the Solicitor General, appearing as counsel for Secretary of Agriculture Dan Glickman. For example, Justice Souter asked:

"[D]o you claim that the value of the Government's interest depends on a Government concern over and above that of thegrowers whose products they are advertising, or, on the other hand, do you claim that the Government's interest is essentially derivative, that it's important simply because the growers want to do this, and that desire, that vote in fact on their part establishes its importance? Which is it?"

Jenkins responded that "it's the latter, Justice Souter, but I think it's broader than that." He explained that the statute expressly sets out the Congressional goals for marketing orders which include establishing orderly market conditions for the covered commodities. Then, he explained, Congress chose to leave the determination of whether a particular region or a particular commodity was threatened in the first instance to the regulated industry.

Can Grower Votes Determine the Importance
of Government's Interest?

Justice Souter noted that growers do not vote in any narrow or specific sense as to whether their interest is threatened. They vote as to whether they want the advertising program or not. Jenkins replied:

"Well I think that's correct, Justice Souter, but that is just at the core of the Government's interest." Souter then commented: Is that how you would explain the .... peculiarity in this case that apparently there are, I guess peach growers, for example, in some 30 states, but the only ones who seem to have expressed a need for this advertising scheme are California peach growers. Is the explanation for that there simply has not been a demonstrated instability in markets elsewhere?

Jenkins agreed but his further explanation of his answer was cut off by a question from Justice Ginsburg, who pressed Jenkins to articulate the substantial government interest in these promotion programs. In response, Jenkins said that the law's legislative history suggests that it is a fundamentally and vitally important governmental interest to stabilize agricultural markets and increase returns to growers of agricultural commodities. Justice Ginsburg responded,

"Well, I could understand that if this was across the board, if you said there [was] this compelling need, and so we do it for all agriculture commodities, but it seems to be rather haphazard." Jenkins responded, "But I think the particularized nature of these marketing orders reflects narrow tailoring rather than arbitrariness ...."

Have Marketing Orders Been Caught
in a Time-Warp?

Justice Scalia then commented that the argument sounded like it had been "time-warped" right out of the 1920s and 30s. He noted, "This [law] is a remnant of the National Industrial Recovery Act when this kind of an argument was made for every industry in the country, and indeed, they tried to have ... the equivalent of marketing orders for every industry in the country." It was found, he said, "not to be true and not to be effective." He then asked Jenkins "do we have to believe" that having the Government in cooperation with industry is "an efficient mechanism for producing economic prosperity?" Jenkins held firm, however, saying that yes the Court had to believe it because

"Congress since the court of appeals decision [in June 1995] in this case has reaffirmed the importance of these programs and, in fact expanded them and made significant factual findings regarding their importance ......"

Jenkins here was referring to Section 501 of the 1996 Farm Bill, (officially the Federal Agricultural Improvement or FAIR Act of 1996), which amended various research and promotion laws and the Agricultural Marketing Agreement Act of 1937 to add supplemental Congressional fact findings concerning the Congressional purposes and intentions behind these laws. This seemed to be more than Justice Scalia could take. He asked how Congress could do this just for agriculture? Why not all industries? Elsewhere, he noted, "market disorder is okay, indeed, it's what drives the market ......"

Is Agriculture Unique?

Chief Justice Rehnquist entered the argument to point out the uniqueness of agricultural economics:

"[C]ouldn't Congress find a fact that in agriculture, at least since after the First World War, there's always been a problem. If there's a good crop the prices are low, and if the prices are good, there's virtually no crop. It's a totally different situation from most other kinds of marketed goods."

He suggested that "that could justify marketing orders, but it certainly doesn't support with any necessity the advertising." He noted that while crop and price fluctuation could justify marketing orders generally, "you could have marketing orders and try to organize the market without any Government advertising." Jenkins responded that both Congress and the Secretary had found that advertising and promotion have a beneficial effect on disorderly markets.

Can Marketing Orders Promote
Proprietary Crop Varieties?

Justice O'Connor asked whether Jenkins was defending the promotion order committee's decision to advertise the "Red Jim" variety of nectarine which was grown exclusively by one grower. When Jenkins said that he was defending that decision, Justice O'Connor expressed her outrage, saying:

"That's amazing, that the Government could take money from everybody in the industry, every grower of peaches and nectarines, and advertise one grower's exclusive use [of] a patented fruit."

Thinking on his feet, Jenkins changed his answer to no, noting that the government "do[es] not defend an overarching governmental goal of advertising a particular competitor's [variety of nectarine]."

Chief Justice Rehnquist presented Jenkins with a hypothetical situation making an analogy to the beer industry:

"[S]upposing there's such a thing as the Beer Institute, which is a private organization devoted to generic advertising for beer, and supposing some of its members feel that some of the micro breweries who aren't members are kind of free-riding on the generic, could the Beer Institute go to Congress and say, look, we want to have a kind of marketing agreement and some generic advertising. We want to bring these freeloaders on board, so let's assess everybody who produces beer."

To this rather difficult hypothetical, Jenkins essentially punted. As he started to answer that if increasing the demand for beer were, in fact, an important government interest, he was interrupted by Justice Scalia who asked, "You think beer is less important than peaches?" Jenkins then simply noted that "it's up to this Court to determine as a matter of law whether the interest that Congress in this case seeks to achieve is an important or a substantial one."

Is Health and Safety More Important
than Growing Demand?

Justice Ginsburg asked, "[T]he Government's got a very important interest in making sure that health requirements are met, but the advertising, the promotional interest doesn't have the same strength, does it?" Jenkins responded in the negative, noting that the marketing order's quality control requirements have the goal of increasing consumption, not health and safety, which is achieved through a different set of USDA regulations. In addition, he noted, under the Court's cases, the question has not been is one means towards an end as important as another means to the end. Rather, he said, the test is whether the end is important and if so, does the means chosen by Congress advance that end? Here the end is important and the means chosen does directly advance that end.

Must An Industry Be on the
Brink of Disaster?

Justice Ginsburg later made an effort to distinguish the facts of Wileman from the facts of United States v. Frame, a 1989 case in which the Third Circuit had rejected a First Amendment challenge to the generic advertising program for beef that resulted in ads centered on the theme, "Beef -It's What's for Dinner":

"[I]n this record there's nothing like there was in the case before the Third Circuit, the meat case, where the Court said, well, we understand -- the Government has made a case that this industry is in disastrous shape, but there's nothing of that kind here, that the peach and nectarine industry is about to fall apart, is there?"

Jenkins responded that the records in Frame and Wileman were "quite similar," but the programs were somewhat different. He noted that the stand-alone Beef Promotion Act focuses almost exclusively on promotion and advertising, while the Congress in the Agricultural Marketing Agreement Act "used a larger number of tools."

Jenkins finished up his argument and Thomas Campagne, one of the attorneys for the challengers, began his. Unfortunately, Campagne was reprimanded by the Chief Justice within the first minute of his argument for making points that the Justices could not follow.

Are Specific Congressional Findings Required?

Justice Stevens asked whether it would make a difference as a matter of constitutional law if Congress had made a finding that "this particular market had particular problems that justified this kind of group advertising program?" Campagne responded, "It would make a huge difference, Your Honor." Justice Stevens then asked, "So you're not saying that this sort of program is always Unconstitutional." Campagne said no, despite what The Wall Street Journal said last week, "we're not saying that the beef program has to be thrown out or the milk program has to be [thrown out]." The Wall Street Journal had published an article prior to the argument saying that the court's decision would likely determine the Constitutionality of the high profile milk and beef promotion laws.

Justice Scalia then asked, "Why can't Congress leave those findings to be made by the Secretary? Congress does that all the time." Campagne responded, "In this case, Your Honor, I don't need to address that issue . . . ." To which Justice Scalia pointed out, "Sure you do. I just asked you about it." Mr. Campagne was repeatedly advised that he needed to make a First Amendment argument not the Administrative Procedure Act argument he seemed to be wanting to make.

Are Commodity Ads a Form of Government Speech?

After Justice Breyer told Campagne that he needed to focus his argument on the First Amendment, he asked:

"So what is the First Amendment problem that your client has that wouldn't be shared by anybody who used to fly on airlines and had to pay money in part for messages that they might have disagreed with that would have been spent by the Air Transport Association [and] required by the Civil Aeronautics Board .... or any taxpayer who pays taxes which then are spent by the Government on messages they disagree with?

Campagne responded by saying that "we would have no objection whatsoever if the Secretary ofAgriculture was taking money out of the General Treasury . . .Justice Breyer interrupted and said, "No no, they didn't - I'm saying the Civil Aeronautics Board, the Interstate Commerce Commission - I mean, I thought the Constitution would permit the public, mistaken or not, to have regulatory systems to regulate every industry, perhaps, if they wanted to, to have a non-free enterprise system . . .He later noted, "[I]t seems to me that there are vast numbers of consumers who used to have to spend lots of money they didn't want to spend for messages that regulators would either permit or require."

When Campagne did not respond to Justice Breyer's question, Justice Scalia answered it for him. He said:

Well then, you would point out, I suppose, that you're not objecting to expenditure[s] of money for advertising or for any other purpose by the Government. The United States doesn't contend in this case that these are Government expenditures, does it?.... So it's not government speech, which would pose a different issue, so we can get rid of a whole lot of regulatory programs that Justice Breyer was referring to, and only limit ourselves to those in which a privately run organization spends money that is assessed against competitors.

Isn't The Real Complaint That Committee
Did Not Do a Good Job?

Justice Stevens noted that it appeared that Carripagne's point was that the commodity committees here did a poor job of administering the promotion program, but that if they had done a good job, the program would be Constitutional. Campagne responded that if it could pass the Central Hudson test (the test applied by the Ninth Circuit), it would be Constitutional. Justice Kennedy also noted that under Campagne's analysis it was alright to associate with the peach committee for purposes of quality control to which his clients did not object. Justice Kennedy then noted:

Once you have in place a marketing order, a marketing system, it seems to me logical that that marketing entity engage in generic advertising. I don't see why the advertising suddenly causes a forced association problem. You are already associated, whether you like it or not.

What Is The First Amendment Claim?

Justice O'Connor noted that she still had not heard an answer to the question of what specific problem his clients had that triggered the First Amendment. She asked, "Are you relying on the fact that there are assessments made and you have less money to advertise on your own?" When Campagne responded, "That's absolutely what I was trying to express," Justice O'Connor commented:

"Well, that's odd, because I thought that there isn't much difference between an assessment or any other fee or tax that Government might take, which necessarily, of course, limits your funds for advertising. You have less money ... Do you cite a case from this Court to support you on that?"

While Campagne then cited a case that he claimed stood for that proposition, Justice Breyer later in the argument noted that the facts of that case were significantly different from the facts of the present case and that the case cited by Campagne did not really stand for the point about which Justice O'Connor was asking.

What If Commodity Was Homogenous?

Near the end of Campagne's argument, Justice Stevens asked a series of questions which extracted a number of concessions from Campagne. First Justice Stevens noted that if this were a homogenous product, Campagne then would not have a problem. Campagne said, "[T]hat's correct." Justice Stevens then asked, "And if advertising was limited to those features of the California peaches that were, in fact, common to all California peaches, you would not have a problem." Campagne responded, " [T]he answer would be yes if there was only one variety of peaches and it was grown in 33 states, and for some reason California's economic environment was in imminent danger of collapse ......

Then Justice Stevens asked, "Now, supposing 97 percent of the advertising concentrates on common features, and 3 percent is bad under your analysis, is the whole program bad, or just the 3 percent?" Campagne responded that if there was a compelling state interest to solve a serious problem, and if they only grow one variety in all the states, "the answer would be that 3 percent would be bad."

It is expected that the Supreme Court will issue its decision in Wileman sometime before July I st.

Richard Rossier and the law firm ofMcLeod, Watkinson & Miller represent various. commodity promotion entities. Richard Rossier and Wayne Watkinson of McLeod, Watkinson & Miller, along with John Roberts of Hogan & Hartson, filed an amicus brief in Glickman v. Wileman in support of the government's petition seeking reversal of the Ninth Circuit's decision by the Supreme Court.

The Agricultural Law Letter is published to highlight recent changes and developments in the law and public policy. As with any publication of this type, it is essential that before any action is taken based upon this information, competent, individualized, and professional advice should be obtained. Copyright 1997 by McLeod, Watkinson & Miller. Reproduction in part or in whole is permitted with permission from McLeod, Watkinson & Miller. Contact Suzanne Bucciarelli at (202) 842-2345, or write to One Massachusetts Avenue, NW, Suite 800, Washington, D.C. 20001. Subscriptions to the newsletter are $25 per year.