Lawsuit Takes on “got milk?” Ads

John Kramer
John Kramer · January 12, 2004

Washington, D.C.—Milk producers who are forced to pay for those ubiquitous “got milk?” ads are asking the federal government, “got free speech?”

Traditional dairy farmers Joseph and Brenda Cochran from Westfield, Penn., are being forced by federal law to help pay for the “got milk” advertisements. Represented by the Washington, D.C.-based Institute for Justice, they are in court seeking to stop this form of government-compelled speech. The case pits the First Amendment against agricultural regulation and promises to have far-reaching consequences for free speech. The U.S. Court of Appeals for the Third Circuit in Philadelphia will hear the Cochrans’ case on January 12, 2004, at 1 p.m.

Although just about everyone has seen the “got milk?” ads on television and in print, most people do not know that under the federal Dairy Promotion Program dairy farmers are forced to pay for them. The Cochrans, for example, must pay approximately $4,000 a year from their thin operating budget for advertisements that obscure the distinctions between the Cochrans’ traditional farming and large-scale producers. This case will have major implications for the many similar programs promoting a wide variety of agricultural products such as “ahh, the power of cheese,” “beef, it’s what’s for dinner” and “pork, the other white meat” ad campaigns, to name just a few. Each of these is certainly a clever ad campaign, but the Cochrans’ lawsuit raises the question, “Should the government force individual producers to pay for them whether or not they want to advertise their products and whether or not they agree with the advertising the programs fund?”

As “traditional” dairy farmers, the Cochrans allow their cows more room to graze and to move around, and they don’t use bovine growth hormone. They tend to about 150 cows on roughly 900 acres of land, 200 of which they own. Dairy farming has been in Joe’s family for three generations. In the Cochrans’ view, traditional dairy farming results in healthier cows, a cleaner environment and a superior product. The Cochrans thus have every reason to distinguish their product from that of larger-scale producers. The Dairy Act, however, compels them to do just the opposite. It requires them to fund generic ads whose message is that all milk is the same, regardless of who produces it or what methods they use. Under the Dairy Program, for instance, all dairy farmers must pay to the program 15 cents per “hundredweight” (i.e., per 100 lbs.) of milk they sell.

Steve Simpson, a senior attorney with the Institute for Justice, said, ?The U.S. Supreme Court long ago held that the First Amendment does not allow government to compel individuals to speak, just as it does not allow government to prevent them from speaking. Speech wouldn’t be free if government could require people to convey officially sanctioned messages. The same principle applies to compelling people to pay for speech with which they disagree.?

On April 2, 2002, the Cochrans filed Cochran v. Veneman in the U.S. District Court for the Middle District of Pennsylvania challenging the Dairy Program as a violation of their rights under the First Amendment. Unfortunately, because of confusion from seemingly conflicting recent U.S. Supreme Court decisions in similar cases, the Cochrans’ lost their case in District Court, with the court ruling on March 4, 2003, that the Dairy Program is constitutional because the milk industry is otherwise heavily regulated. (In 1997, the U.S. Supreme Court upheld a federal law that required producers of California peaches and nectarines to subsidize a collective advertising program because they operate in a heavily regulated industry. In 2001, the Court struck down a program that required producers of mushrooms to do the same because they are not as regulated.)

“Courts are telling agricultural producers that as long as the government controls their prices, production, terms of sale and so on, it may as well control their free speech, too,” Simpson said. “But two wrongs don’t make a right; restricting one kind of freedom—economic liberty—isn’t license to destroy another—free speech.”

The Cochrans appealed their case to the U.S. Court of Appeals for the Third Circuit, and IJ agreed to handle their appeal. The case is scheduled to be argued in Philadelphia on January 12, 2004, with a decision following some months thereafter.

Defenders of the Dairy Program claim that it will increase demand for dairy products, which is necessary in order to decrease the federal government’s financial obligations under the so-called “dairy price support program.” In 1949, Congress passed a law that required the federal government to purchase dairy products if the price of milk fell too low. The idea of the program was to prop up the price of milk by establishing the government as the buyer of last resort. The problem is that this eliminated dairy farmers’ incentive to cut production when prices fell. As a result, dairy producers kept producing dairy products that the government was obligated to purchase. Before long, the government had a lot of dairy products it didn’t need and a very large bill. Thus, proponents of the Dairy Program argue, clever “got milk” ads are necessary to make private citizens buy up all that excess milk so the government won’t have to. But here again, the problem is not a lack of advertising but an ill-advised price support program that distorts the milk market and leaves the federal government holding the bag. The solution is not to foist a collective advertising program on dairy farmers, but to end the price support program.

?The truth is, the laws that create these promotional programs are as much a result of special interest politics as any other pork barrel measure—with the only difference being that instead of heaping taxpayer dollars on a particular industry, Congress essentially lends out its legal authority to coerce all producers into a collective advertising scheme,? Simpson said.

The Cochrans are independent dairy farmers. They are not members of any dairy manufacturing or marketing cooperative. They market their milk themselves, and they alone determine how much to produce, how to sell it and to whom it will be sold. Each year, they independently negotiate with the various processing plants that purchase their milk. They would be perfectly happy if the government would leave dairy farmers alone and let them produce, market and sell their milk themselves.

Assisting the Institute for Justice as local counsel is Walter Grabowski, of Holland & Grabowski in Wilkes Barre, Pa.