Washington, D.C. — On April 19, The House Appropriations Committee approved its budget — at $21.3 billion in funding — for the fiscal year 2017. And in a report that accompanied the spending bill, the committee asked the FDA to extend Freedom of Information Act (FOIA) exemption to certain “checkoff programs” that promote commodities in the agriculture industry.
Checkoff programs collect funds from individual commodity groups, then use that funding to pay for things like advertising campaigns and research. The “Got milk?” campaign was a product of the dairy checkoff program, while “Beef: It’s what’s for dinner” was created with money from the cattle industry.
These programs have long been the subject of controversy and legal action, however, because of the manner in which they’re funded — direct taxation of farmers. Once Congress approves and establishes these programs, the farmers of each individual commodity group are required, by law, to pay the taxes that fund them.
The hybrid nature of these programs — which Dan Charles of NPR described as using “government authority to collect money for private commercial goals” — has many asking a legitimate question: Are checkoff programs part of the federal government or the private agriculture industry?
The law has gone back and forth on the issue. In 2001, for instance, the Supreme Court ruled in U.S. v. United Foods, Inc. that the First Amendment rights of mushroom farmers — who were complaining they were being forced to pay for a program that they otherwise wouldn’t — were indeed being violated.
But a few years later, in 2005, the Supreme Court went the opposite way. In Johanns v. Livestock Marketing Association, the court asserted that checkoff programs constituted “government speech” and therefore did not violate the First Amendment.
From the Court’s opinion, written by the late Antonin Scalia:
“Citizens can challenge compelled support of private speech, but have no First Amendment right not to fund government speech. And that is no less true when the funding is achieved through targeted assessments devoted exclusively to the program to which the assessed citizens object.”
But if the courts have ruled that checkoff programs fall under federal authority, then one wonders about the grounds with which the House Appropriations Committee is trying to shield these programs from FOIA — a law that subjects government documents to disclosure.
Before addressing that issue, however, it might do to examine why the committee is looking for exemption in the first place.
The short answer is that the HAC is seeking to avoid any more of the recent scrutiny — and accompanying unpleasantness — that has befallen the agriculture industry.
Last year, for instance, a FOIA request was used to obtain documents that revealed how officials at the American Egg Board were working to create a PR campaign against a vegan competitor. Problem is, under the rules governing checkoff programs, commodity producers are only allowed to campaign in a general way and are forbidden from targeting specific groups.
Around the same time, other FOIA-obtained records revealed how scientists at state-funded universities had been enlisted to help agrichemical corporations like Monsanto as they fight against the increasing desire by consumers for GMO labeling on products.
FOIA exemption, then, would protect these programs from further public scrutiny. To that end, commodities groups are seeking to highlight their private nature.
In early April, lobbying groups for the agriculture industry sent a letter to Congress requesting changes to FOIA that would shield producers from document requests.
The letter argues that “the research and promotion programs are funded solely with producer dollars, and therefore are not agencies of the federal government or subject to the Freedom of Information Act.”
Given these events, one could be forgiven for assessing that the agriculture industry would like to have its cake and eat it, too — enjoying taxpayer-funded PR campaigns via government mandate while being shielded from examination by those very same taxpayers.