WASHINGTON (FNS) -- A federal court decision that could affect the amount of money funneled into generic advertising campaigns is currently being reviewed by the Justice Department, which will decide whether to appeal to the Supreme Court.
The controversy arises from a challenge to the federal Agricultural Marketing Agreement Act by 15 California nectarine and peach growers and packers. In late September, the Ninth Circuit Court of Appeals ruled in their favor, agreeing that the U.S. Department of Agriculture violated their First Amendment rights by forcing them to contribute to generic advertising campaigns. Justice attorneys have until Dec. 18 to file an appeal with the high court.
The growers, who represent 17% of California's production of peaches and nectarines and include some of the industry's largest suppliers, are not questioning whether generic ad campaigns increase retail sales for commodities such as beef, butter, milk and eggs. However, they contend that USDA should give them the option to use their portion of the ad money collected on promoting their particular brands instead.
According to California Tree Fruit Agreement manager Jonathan Field, 80% of the growers consistently have voted to continue with the generic campaigns. Field said generic advertising is important for these growers, since they are too small to develop the brand-name recognition enjoyed by Sunkist or Chiquita.
Under the generic advertising program, each of the California tree fruit sectors typically collects $3 million to $3.5 million from growers by levying roughly 19 cents per 28-pound box. Typical of generic advertising copy are promotions touting "California nectarines are the juiciest" and "How to make a peach pie with California peaches." California produces roughly 97% of the nation's nectarines
and 70% of its peaches.
Thomas Campagne, an attorney representing the 15 break-away nectarine and peach growers, argued successfully to the lower courts that if USDA can't prove that generic advertising is more beneficial than branded advertising, then to dictate one vehicle over another is violating the First Amendment right to free speech.
A USDA spokesman said agency officials couldn't comment on the pending case, nor would Justice officials say whether they will carry the agency's appeal to the Supreme Court.
