Michigan Pork Producers Association, Inc. v. ANN M. VENEMAN, Secretary, United States Department of Agriculture

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0373P (6th Cir.)
File Name: 03a0373p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
No. 02-2337
MICHIGAN PORK PRODUCERS
ASSOCIATION, INC., et al.,
Plaintiffs,
v.
ANN M. VENEMAN, Secretary,
United States Department of
Agriculture, et al.,
Defendants-Appellants,
CAMPAIGN FOR FAMILY
FARMS, an Unincorporated
Association of Membership
Organizations,
Defendant-Appellee.
No. 02-2338
MICHIGAN PORK PRODUCERS
ASSOCIATION, INC., et al.,
Plaintiffs-Appellants,
v.
ANN M. VENEMAN, Secretary,
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Nos. 02-2337/2338
2 Mich. Pork Producers Ass’n,
et al. v. Veneman, et al.
Nos. 02-2337/2338
*The Honorable Myron H. Bright, Senior Circuit Judge of the United
States Court of Appeals for the Eighth Circuit, sitting by designation.
United States Department of
Agriculture, et al.,
Defendants-Appellees,
CAMPAIGN FOR FAMILY
FARMS, et al.,
Intervenors-Appellees.
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N
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 01-00034—Richard A. Enslen, District Judge.
Argued: March 14, 2003
Decided and Filed: October 22, 2003
Before: COLE, GILMAN, and BRIGHT, Circuit Judges.*
_________________
COUNSEL
ARGUED: Matthew M. Collette, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., Susan E.
Stokes, FARMERS LEGAL ACTION GROUP, INC., St.
Paul, Minnesota, for Defendants. Edward M. Mansfield,
BELIN LAMSON McCORMICK ZUMBACH FLYNN, Des
Moines, Iowa, for Plaintiffs. ON BRIEF: Matthew M.
Collette, Douglas N. Letter, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., Susan E.
Stokes, David R. Moeller, FARMERS LEGAL ACTION

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GROUP, INC., St. Paul, Minnesota, for Defendants. Edward
M. Mansfield, BELIN LAMSON McCORMICK ZUMBACH
FLYNN, Des Moines, Iowa, Robert Charles Timmons,
BOYDEN, TIMMONS, DILLEY & HANEY, Grand Rapids,
Michigan, for Plaintiffs.
_________________
OPINION
_________________
R. GUY COLE, JR., Circuit Judge. Michigan Pork
Producers Association, Inc., et al. (“MPPA”) and the
Secretary of Agriculture (the “Secretary”) (collectively
“Appellants”) appeal the grant of summary judgment to
Appellees Campaign for Family Farms, et al. (“CFF”). The
United States District Court for the Western District of
Michigan declared the Pork Promotion, Research and
Consumer Information Act (the “Pork Act”), 7 U.S.C. § 4801
et seq., and the Pork Promotion Order issued thereunder, 7
C.F.R. § 1230, unconstitutional and issued an injunction
terminating all activities under the Pork Act and the Pork
Promotion Order. The Act mandates that pork producers and
importers (collectively “pork producers”) pay assessments,
known as “checkoffs,” to fund promotion, research, and
consumer information to benefit the pork industry.
The district court held that requiring the payment of these
assessments violates the First Amendment rights of pork
producers by compelling them to subsidize speech with which
they do not agree. Appellants argue that: (1) the assessments
subsidize a government program that advances the
government’s policy of promoting pork consumption, and,
therefore, are immune from First Amendment scrutiny;
(2) even if not part of a government program, the assessments
are not compelled speech; (3) the Pork Act program that
requires the collection of assessments, is a lawful restraint on
commercial speech; and (4) even if the use of assessments for
4 Mich. Pork Producers Ass’n,
et al. v. Veneman, et al.
Nos. 02-2337/2338
promotion under the Pork Act violates the First Amendment,
the injunction ordered by the district court is overly broad in
that it eliminates funding for programs that are constitutional.
For the reasons stated below, we AFFIRM the grant of
summary judgment by the district court.
I. BACKGROUND
As part of the Food Security Act of 1985, Congress enacted
the Pork Act. The purpose of the Pork Act is to:
[A]uthorize the establishment of an orderly procedure for
financing, through adequate assessments, and carrying
out an effective and coordinated program of promotion,
research, and consumer information designed to—
(A) strengthen the position of the pork industry in the
marketplace; and
(B) maintain, develop, and expand markets for pork and
pork products.
7 U.S.C. § 4801(b)(1). The Pork Act provides for the creation
of a National Pork Producers Delegate Body (“Delegate
Body”). 7 U.S.C. § 4806. The Delegate Body – which
determines the amount and distribution of the assessments –
consists of pork producers, who are nominated by the state
pork producers associations and appointed by the Secretary,
and pork importers, who are appointed by the Secretary based
on the amount of assessments collected from importers. 7
U.S.C. § 4806(b)(1). The Pork Act also provides for the
creation of a 15-member National Pork Board (“the Board”),
7 U.S.C. § 4808 (a)(1), whose nominees are chosen by the
Delegate Body and appointed by the Secretary. The Board is
to develop and implement programs that fulfill the statutory
mandates of promotion, research, and the provision of
consumer information. 7 U.S.C. § 4808(b)(1). Although the
United States Department of Agriculture (“USDA”) provides
some oversight over the Board, its Executive Vice President

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1In 2002, the Farm Security and Rural Investment Act of 2002 was
passed, exemp ting organic hog farmers from p aying the assessments.
Pub . L. No . 107 -171 , §1(a ), 116 Stat. 13 4 (2002 ).
noted that it “is not to be considered as a governmental
entity/agency or a government contractor.” Morever, the
members of the Board receive no compensation from the
government, and are reimbursed for expenses from the
collected assessments. 7 U.S.C. § 4808(a)(1)(6).
Because the Pork Act explicitly states that its programs
“shall be conducted at no cost to the Federal Government,” 7
U.S.C. § 4801(b)(2), the Act provides for funding through
mandatory assessments. 7 U.S.C. § 4809 et seq. In
accordance with the provisions of the Pork Act, an initial
Pork Promotion Order, establishing the Pork Checkoff
Program, was issued by the Secretary in 1986. An initial
referendum on the Pork Checkoff Program was held in 1988,
and it was approved with the support of nearly eighty percent
of pork producers. Payments are assessed against all
producers of porcine animals that are sold or slaughtered for
sale, and all importers of porcine animals, pork, or pork
products.1 7 U.S.C. § 4809 (a)(1). The Board receives all
assessments, and distributes them according to formulas
detailed in the Pork Act. Although most of the funds support
generic advertising, some of the money is spent to promote
specific brands of pork products.
CFF, a non-profit advocacy group consisting of a coalition
of four family farm organizations as well as individual hog
farmers, is devoted to “ensuring the continued existence of
family farms, particularly hog farms.” Since 1998, CFF’s
primary goal has been to end the Pork Checkoff Program.
CFF believes that the advertising funded by the Pork
Checkoff Program favors those who sell processed meats,
misrepresents the safety and desirability of large commercial
farming, and downplays the benefits of family farms. In May
6 Mich. Pork Producers Ass’n,
et al. v. Veneman, et al.
Nos. 02-2337/2338
1999, after CFF filed petitions with the USDA seeking a
referendum on the termination of the Pork Checkoff Program,
then-Secretary Glickman decided to conduct a voluntary,
“fairness” referendum on the checkoff program’s future.
On January 11, 2001, Secretary Glickman announced that
a majority of individuals had voted to terminate the program,
and that as a result, he would terminate it. MPPA filed suit
the next day to enjoin the program’s termination. Mich. Pork
Producers Ass’n, Inc. v. Campaign for Family Farms, 174 F.
Supp. 2d 637, 639 (W.D. Mich. 2001) (“MPPA I”). On
January 19, 2001, the district court issued a temporary
restraining order pending hearing of the preliminary
injunction motion. Id. Between the restraining order and the
scheduled hearing, newly-appointed Secretary of Agriculture
Veneman decided to preserve the Pork Checkoff Program,
albeit with the funds collected by the Pork Checkoff Program
administered directly by the Board instead of by the NPPC.
On June 25, 2001, the Supreme Court in United States v.
United Foods, 533 U.S. 405 (2001), invalidated – as contrary
to the First Amendment’s prohibition against compelled
speech – the Mushroom Checkoff Program created by the
Mushroom Promotion, Research, and Consumer Information
Act, 7 U.S.C. § 610 et seq. (the “Mushroom Act”). Like the
Pork Act, the Mushroom Act required producers and
importers of mushrooms to pay assessments that were
primarily used to fund generic advertising that promoted the
sale of mushrooms. CFF subsequently added to its complaint
a First Amendment challenge to the Pork Act. MPPA I, 174
F. Supp. 2d at 639. On December 4, 2001, the district court
upheld the legality of Secretary Veneman’s decision to
preserve the Pork Checkoff Program. MPPA I, 174 F. Supp.
2d at 643-44. The court explicitly stated, however, that its
ruling had no effect on the other claims of the parties,
including CFF’s First Amendment challenges. Id. at 648.

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CFF then voluntarily dismissed all of its remaining
challenges to the Pork Checkoff Program, save for its First
Amendment claims. Mich. Pork Producers Ass’n, Inc. v.
Campaign for Family Farms, 229 F. Supp. 2d 772, 777 (W.D.
Mich. 2002) (“MPPA II”). The parties filed cross-motions for
summary judgment. On October 25, 2002, the district court
granted CFF’s summary judgment motion, holding that the
First Amendment prohibited the Pork Checkoff Program and
enjoining it in its entirety. Id. at 792. MPPA and the
Secretary filed timely Notices of Appeal, and this Court
subsequently granted a stay of the district court’s injunction
pending the appeal.
II. ANALYSIS
A. Standard of Review
We review the district court’s grant of summary judgment
de novo. See Watkins v. City of Battle Creek, 273 F.3d 682,
685 (6th Cir. 2001). Summary judgment is granted when the
record, viewed in the light most favorable to the nonmoving
party, reveals that there is no genuine issue of material fact
such that the moving party is entitled to judgment as a matter
of law. FED. R. CIV. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
B. Standing
Plaintiffs have standing under Article III to challenge the
Pork Act. MPPA challenges the standing of CFF, claiming
that: (1) several named appellees lacked standing because
they do not pay assessments under the Pork Act and are
unaffected by these provisions of the Pork Act requiring such
payments; and (2) CFF does not have standing as an
association under the test articulated in Hunt v. Wash. Apple
Adver. Comm., 432 U.S. 333, 343 (1977). In its brief to this
Court, however, MPPA concedes that “two individuals, Mr.
Smith and Mr. Jones, had standing to pursue their claims.”
8 Mich. Pork Producers Ass’n,
et al. v. Veneman, et al.
Nos. 02-2337/2338
Since at least one appellee in this action has standing, there is
no need to consider MPPA’s standing challenges to the
individual appellees or to CFF. See, e.g. Bowsher v. Synar,
478 U.S. 714, 721 (1986) (explaining that if one plaintiff has
standing, it is unnecessary to consider the issue of standing as
to other plaintiffs in the action).
C. First Amendment Challenge
1. Governmental Speech
We first consider whether the subsidies generated under the
Pork Act are properly analyzed as private speech or as
governmental speech. The Supreme Court has made clear
that the government may dictate the content and even the
viewpoint of speech when the government itself is the
speaker: “[V]iewpoint-based funding decisions can be
sustained in instances in which the government is itself the
speaker....” Legal Servs. Corp. v. Velazquez, 531 U.S. 533,
541 (2001). But the Court has yet to consider whether
programs similar in nature to the Pork Checkoff Program
constitute governmental speech – the Court declined to do so
in United Foods because the government had failed to raise
the governmental speech argument in the court below. United
Foods, 533 U.S. at 417.
We conclude that the pork industry’s extensive control over
the Pork Act’s promotional activities prevents their attribution
to the government. First, the primary purpose of the Pork Act
is to strengthen the market position of the pork industry and
increase the domestic markets for pork and pork products. 7
U.S.C. § 4801. See Keller v. State Bar of Cal., 496 U.S. 1, 13
(1990) (categorizing as private the speech of an organization
created “not to participate in the general government of the
State, but to provide specialized professional advice to those
with the ultimate responsibility of governing the legal
profession.”). Second, unlike the typical scenario in which
speech is considered governmental in nature, the programs’

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funding does not come from general tax revenues. See, e.g.,
Rust v. Sullivan, 500 U.S. 173 (1991); Wells v. City and
County of Denver, 257 F.3d 1132 (10th Cir. 2001); Downs v.
Los Angeles Unified Sch. Dist., 228 F.3d 1003 (9th Cir.
2000), cert. denied, 532 U.S. 994 (2001). The Pork Act’s
funding comes solely from mandatory assessments paid by
pork producers; the Act specifically forbids the use of
government funds for its operations, and the Secretary and her
staff are reimbursed from the assessments for any time spent
working on activities under the Pork Act. 7 C.F.R.
§ 1230.73(c)(4).
Third, the government exercises only limited oversight over
the programs. See United Foods, 533 U.S. at 417 (suggesting
that merely pro forma government oversight over a
promotional program counsels against classifying it as
governmental speech). Only one USDA staff member is
responsible for overseeing all of the duties relating to the Pork
Checkoff Program, including attending all meetings of the
Pork Board and reviewing all advertisements and
communications it develops. The government itself does not
propose or draft any of the advertisements. Indeed, the
trademark for the most recognizable ad, “Pork. The Other
White Meat,” is owned by the NPPC, not the government.
The Pork Board itself is comprised only of private pork
producers, appointed by the Secretary based on nominations
made by the private state pork producers associations – which
themselves are run entirely by industry officials.
In sum, the costs and content of the speech in question are
almost completely the responsibility of members of the pork
industry. The First Amendment does not lie dormant merely
because the government acts to consolidate and facilitate
speech that is otherwise wholly private.
10 Mich. Pork Producers Ass’n,
et al. v. Veneman, et al.
Nos. 02-2337/2338
2The federal courts have yet to weigh in on many other agriculture-
promoting programs, including those touting “The Incredible, Edible
Egg”; “Ah . . . the Power of Cheese”; and “The T ouch ... the Feel of
Cotton ... the Fabric of Our Lives.” See Note, The Co nstitution – It’s
What’s for Dinner, 2 WY O. L. REV. 617 , 638 (2002). Earlier this year,
however, the Eighth Circuit invalidated, as unconstitutional compelled
speech, the mand atory assessment pro gram bearing the slogan “B eef – It’s
what’s for Dinner.” See Livestock Mktg. Ass’n v. United States Dep’t of
Agric., 335 F.3d 71 1 (8th Cir. 2003).
2. Compelled Speech
With its programs properly characterized as private speech,
the constitutionality of the Pork Act turns on whether pork is
more like mushrooms or more like peaches. See F.J.
Dindinger, Free Speech for Mushrooms but not Peaches:
Economic Regulations after United Foods, Inc., COLO. LAW.
61 (April 2002). In United Foods, the Supreme Court held
that the Mushroom Act – which provided for mandatory
assessments that were used primarily to fund the generic
advertising of mushrooms – violated the First Amendment’s
prohibitions against compelled speech. Id. at 411. However,
in Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457
(1997), the Supreme Court held that the Agricultural
Marketing Agreement Act – which established mandatory
assessments that funded a broad regulatory apparatus that
included, as one of its many programs, promotional
advertising of California tree fruit – did not constitute
unlawful compelled speech.2
Because the Pork Act is nearly identical in purpose,
structure, and implementation to the Mushroom Act, the Pork
Act is unconstitutional under the analysis set forth in United
Foods. The Pork Act mandates that:
(3) Nothing in this chapter may be construed to -
(A) permit or require the imposition of quality standards
for pork or pork products;

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(B) provide for control of the production of pork or pork
products; or
(C) otherwise limit the right of an individual pork
producer to produce pork and pork products.
7 §4801(b)(3). This scheme is a far cry from that upheld in
Glickman, which – in addition to funding a promotional
campaign – provided for regulated price, output, and quality,
and also authorized joint research and development projects,
inspections, and even standardized packaging. Glickman, 521
U.S. at 461. With the express prohibition on this type of non-
promotional regulation, the Pork Act serves but one purpose:
promotion. This case is therefore governed by United Foods.
MPPA attempts to distinguish the Mushroom Act from the
Pork Act, claiming that most of the funds collected by the
former were used for generic advertising, whereas only 16
percent of the total expenses in the 2001 Budget for all the
activities funded under the latter were used for generic,
nationwide advertising. In fact, the record reflects that the
majority of the Pork Act’s funds support advertising and
promotions. The 2001 Budget called for $29,388,491, or 51
percent of the total expenses, to be used under the category of
“Demand Enhancement.” Id. Expenditures in this area were
budgeted as follows:
Demand Enhancement Programming $2,816,000
Advertising $8,825,000
Merchandising $5,400,000
Foodservice $3,697,000
Pork Information Bureau $2,800,000
Foreign Market Development/World Trade $5,850,491
The district court also found that Pork Act programs
providing for “education” and “research” were designed to
further the Act’s promotional goals. MPAA II, 229 F. Supp.
at 777. Thus, the use of the assessments to fund advertising
under the Pork Act is prohibited by the First Amendment
12 Mich. Pork Producers Ass’n,
et al. v. Veneman, et al.
Nos. 02-2337/2338
because the expression that CFF and its members must
support “is not germane to a purpose related to an association
independent from the speech itself.” United Foods, 533 U.S.
at 415-16.
Finally, we find inapplicable to this case the relaxed
scrutiny of commercial speech analysis provided for by
Central Hudson, and relied upon by Appellants. The Pork
Act does not directly limit the ability of pork producers to
express a message; it compels them to express a message with
which they do not agree. Even assuming that the advertising
funded by the Act is indeed commercial speech, the more
lenient standard of review applied to limits on commercial
speech has never been applied to speech – commercial or
otherwise – that is compelled. See Glickman, 521 U.S. at 474
n.18 (questioning whether “the Central Hudson test, which
involved restrictions on commercial speech, should govern a
case involving the compelled funding of speech”). It is one
thing to force someone to close her mouth; it is quite another
to force her to become a mouthpiece.
3. Remedy
Finally, we conclude that the district court properly
invalidated the Pork Act in its entirety. Because the Act has
no “severability clause” providing for the preservation of
those statutory provisions that comply with the Constitution,
we must invalidate the entire statute if the “balance of the
legislation is incapable of functioning independently.” Alaska
Airlines, Inc. v. Brock, 480 U.S. 678, 685 (1987). The very
basis for holding that the Act violates the First Amendment –
that its assessment of fees to promote pork is the chief goal of
the Act, which does not create a broader regulatory program
– prevents us from preserving other parts of the statute. See
Livestock Mktg. Ass’n v. United States Dep’t of Agric., 335
F.3d 711, 726 (8th Cir. 2003) (“[T]he fact that the ‘principal
object’ of the Beef Act is the very part that makes it
unconstitutional, (i.e., compelling funding of generic

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advertising) [means that] no remaining aspects of the Act can
survive.”). It would be paradoxical to conclude
simultaneously that Congress sought only to promote pork
and that Congress still intended the incidental provisions of
the Act to operate independently.
Nor does United Foods instruct otherwise. Appellant
contends that: (1) this Court’s decision in that case
invalidated only part of the Mushroom Act; and (2) the
Supreme Court affirmed the decision of this Court in its
entirety. This argument misunderstands both decisions. The
lone sentence in this Court’s decision upon which Appellants
rely – which states that “[t]he portions of the Mushroom Act
of 1990 which authorize such coerced payments for
advertising are likewise unconstitutional” – was part of the
analysis that distinguished the Mushroom Act from the statute
upheld in Glickman, and in its context is most fairly read only
as a comparison of the two statutes. This reading is
confirmed by the Supreme Court’s discussion of the decision
below, which states only that “the Sixth Circuit held this case
is not controlled by Glickman.” United Foods, 533 U.S. at
409. Even more illustrative is the Supreme Court’s
conclusion in United Foods that “[t]he only program the
Government contends the compelled contributions serve is
the very advertising scheme in question.” Id. at 415. The
decision to invalidate the advertising provisions of the
Mushroom Act by definition resulted in the invalidation of the
entire statute.
It would contort congressional intent if we were to take a
statute that seeks entirely to promote a particular product and
then strain to preserve the purportedly non-promotional
provisions of that very statute. And the Supreme Court does
not require that we do so. The district court was correct in
striking down the entire Pork Act.
14 Mich. Pork Producers Ass’n,
et al. v. Veneman, et al.
Nos. 02-2337/2338
III. CONCLUSION
For the reasons stated, we AFFIRM the grant of summary
judgment by the district court.

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