Federal appeals court says ‘nuts’ to almond handlers’ objections to ads

Wednesday, September 29, 1999

A federal marketing order that imposes fees on individual almond handlers to fund generic advertising does not violate the First Amendment, according to a recent federal appeals court ruling.

A group of almond handlers led by Cal-Almond, Inc. argued that the mandatory fees compelled their speech and prevented them from engaging in the advertising of their choice.

The U.S. Department of Agriculture defended the program, saying that the mandatory, generic advertising program was not a speech restriction but an economic regulatory effort.

Originally, the 9th U.S. Circuit Court of Appeals had ruled that the law violated the First Amendment. “The First Amendment right of free speech includes a right not to be compelled to render financial support for others’ speech,” the court said.

However, the U.S. Supreme Court sent the case back down to the lower court after the high court agreed to hear a similar case involving mandatory advertising for fruit handlers — Glickman v. Wileman Bros. & Elliott, Inc.

The USDA’s defense cited the 1997 Glickman decision, in which the high court upheld a federal program forcing some fruit producers to pay for generic ads to promote their industry.

“The fact that an economic regulation may indirectly lead to a reduction in a handler’s individual advertising budget does not itself amount to a restriction on speech,” wrote the Supreme Court.

In its Sept. 21 opinion in Cal-Almond Inc. v. U.S. Department of Agriculture, the 9th Circuit relied on the high court’s reasoning in Glickman to hold that the advertising program which requires contributions for generic advertising does not violate First Amendment free-speech rights.

“Because almond handlers remain free to choose whether and how to advertise directly, it cannot be said to constitute compelled speech,” the 9th Circuit wrote.