‘Where’s the beef?’ R-CALF sues to amend check-off program

Attorneys representing Montana ranchers, the U.S. Department of Agriculture and the Montana Beef Council presented oral arguments Tuesday in a federal court case that could fundamentally change how U.S. beef consumption is promoted and advertised.

Instead of “Beef. It’s what’s for dinner” it could come down to “Beef. Who controls the message?”

On May 2, 2016, R-CALF filed a complaint in the U.S. District Court of Montana alleging that perhaps half of the $1 per-animal assessment every Montana rancher is asked to pay when selling their cattle is being spent by an organization with no government oversight, and whose allegiance is more directly aligned with the interests of giant, multinational corporations rather than the state’s independent ranchers and feedlot owners.

“This is not just a violation of freedom of speech, it’s a violation of the freedom of association,” said David Muraskin, a Washington, D.C., attorney representing the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF USA). “It’s an issue of forced association, with the potential risk that the money (half of the approximately $80 million collected annually via the national beef check-off program) would be used to fund private speech.”

The R-CALF complaint states: “The Montana Beef Council is comprised of individuals aligned with some of the largest multinational, industrial cattle producers, which purchase and raise cattle both domestically and internationally. As a result, the council engages in promotional campaigns that communicate that all beef is equal and it is irrelevant where beef comes from.”

As an example, R-CALF highlighted a recent promotional campaign undertaken by the fast-food chain Wendy’s to promote its Bacon Ciabatta Cheeseburger.

“Working together, the two companies (Wendy’s and the Montana Beef Council) ‘collaborate[ed]’ to develop digital, radio, and television advertising for Wendy’s product,” the complaint states.

Wendy’s advertisements make pointed reference to the use of beef that is fresh, not frozen and from cattle raised in North America — but the ads do not tell the difference between beef raised in the United States or beef grown, processed and packaged in other parts of North America.

Statistics from the U.S. Department of Agriculture show the U.S. imported more than 2.15 billion pounds of beef in the first six months of 2015. Roughly a third of that came from Australia; however, a combined total of nearly 682 million pounds of beef entered the U.S. from Canada, Mexico, Nicaragua, Costa Rica and Honduras.

Under Wendy’s definition of “cattle raised in North America” there’s no way to determine whether the beef in a ciabatta burger bought in Great Falls came from Billings or Tegucigalpa.

As stated previously, since 1985 beef producers have paid $1 for every animal sold into a national fund to promote the marketing and consumption of beef in the United States. That money is typically collected by state brand inspectors at the time of sale. It is then delivered to a “qualified state beef council” (the Montana Beef Council in Montana) who forwards half the proceeds to the Cattleman’s Beef Board for investment into national checkoff programs. Fifty cents from each dollar is then retained locally to support the promotional activities of the state beef councils.

“Sellers must pay even if they don’t believe they have any say over who gets the money, or why,” states a story from the Rocky Mountain PBS News. “And they must pay even if they believe the fund advances the interests of multimillionaire ranchers against their own.”

In 2000, the Livestock Marketing Association of Nebraska sued the U.S. Department of Agriculture, arguing the beef check-off program violated its First Amendment right to free speech. The U.S. Supreme Court ruled in 2005 that advertising programs promoted by the Cattleman’s Beef Board constituted “government speech” and therefore the government could not be sued under the First Amendment.

The R-CALF suit does not contest the constitutional validity of the beef check-off program as a whole, but does contend the Montana Beef Council is a privately incorporated business, and that money from the beef check-off program should not be dedicated toward funding of a program they claim to be a form of “private speech.”

“None of the Montana Beef Council’s activities are undertaken with the direct oversight of the Secretary of Agriculture or any other federal official,” R-CALF’s complaint states. “Neither USDA nor the Montana Beef Council has established a procedure by which a cattle producer who disagrees with the Montana Beef Council’s message can request that the complete amount of his assessments be directed to the Beef Board, a body controlled by the federal government.”

“Our clients are not objecting to the sum of money collected,” Muraskin said, “it’s over the lack of control over where it goes and how it is used.”

U.S. Department of Justice attorney Michelle Bennett countered that beef producers may request their check-off dollars be redirected directly to the Cattleman’s Beef Board, but there is little record of any Montana producers filing to request such a transfer.

Federal Magistrate Judge John Johnston took the attorney’s arguments under advisement, and will render a ruling at an unannounced future date.