GRAND RAPIDS, Mich. — A federal appeals court has upheld a judge's decision declaring the U.S. Department of Agriculture's pork-checkoff program unconstitutional.

A three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati ruled unfavorably yesterday on an appeal filed by the USDA and the Lansing-based Michigan Pork Producers Association.

U.S. District Judge Richard A. Enslen in Kalamazoo last October ruled against the National Pork Promotion, Research and Consumer Information Act of 1985.

The federal law spawned the USDA-supervised checkoff program, which started the following year. The $54 million program is financed through a mandatory fee, called a "checkoff," which now amounts to 40 cents for every $100 of a sold pig's value.

The checkoff program is best known for its promotion of pork as "the other white meat." The fees collected from hog farmers also are used for financing research and consumer information.

Enslen ordered an end to the collection of those fees as of last Nov. 24. But the USDA got a stay of that order and continued collecting the fees pending its appeal.

"Hog farmers voted it down. Now two federal courts have decided the mandatory pork checkoff is unconstitutional and is entirely invalidated," said Mark McDowell, a pork producer in Hampton, Iowa, and spokesman for Campaign for Family Farms. The Missouri-based coalition of groups representing small hog farms sued to end the checkoff program.

Sam Hines, executive vice president of the Michigan Pork Producers Association, an affiliate member of the National Pork Producers Council, said he assumed the appeal process would continue but the decision ultimately lies with the U.S. Department of Justice.

Yesterday's unanimous decision by the three-judge panel can be appealed to the full 6th Circuit or to the U.S. Supreme Court.

The Justice Department was reviewing the decision but had no immediate comment, said spokesman Blain Rethmeier.

"The producers in Michigan are very supportive of the checkoff and have been, and realize the benefits that they've accrued from the programs that it's supported for a number of years," Hines said. "So they're somewhat disappointed that this was the decision."

U.S. Agriculture Secretary Ann Veneman, said, "I am disappointed that the U.S. Court Appeals did not overturn the lower court's ruling. USDA regards such programs, when properly administered, as effective tools for market enhancement. We are consulting with the U.S. Department of Justice to determine the next steps regarding this matter."

In May 1999, Campaign for Family Farms collected enough pork producers' signatures for a binding referendum to end the checkoff program. The following year, hog farmers voted 15,951 to 14,396 to eliminate it.

The USDA and the Michigan pork group challenged the referendum in court. In settling the lawsuit in February 2001, Veneman said the checkoff program would continue.

Campaign for Family Farms filed a countersuit challenging the legality of the agreement and the constitutionality of the program. In January 2002, Enslen dismissed the portion of the countersuit regarding the settlement's legality. But his October 2002 ruling supported the coalition's claim that the checkoff program violated its First Amendment free-speech and association rights.

In yesterday's decision, the appeals court upheld Enslen's ruling that the program was unconstitutional. Judge R. Guy Cole Jr., who authored the decision, wrote that "the district court properly invalidated the pork act in its entirety."

"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," Cole wrote.

According to the National Pork Producers Council, U.S. hog farms are bigger in size and fewer in number than 50 years ago. There were an estimated 3 million pork producers nationwide during the 1950s compared with about 85,760 today. About 80% of hogs now are grown on farms that produce at least 5,000 per year.

Michigan has about 2,300 pork producers, Hines said.