No. 00-276 

In the Supreme Court of the United States 

UNITED STATES OF AMERICA AND 

UNITED STATES DEPARTMENT OF AGRICULTURE, 
PETITIONERS 

v. 

UNITED FOODS, INC. 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

PETITION FOR A WRIT OF CERTIORARI 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

DAVID W. OGDEN 

Assistant Attorney General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

BARBARA MCDOWELL 

Assistant to the Solicitor 

General 

DOUGLAS N. LETTER 
AUGUST E. FLENTJE 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

Whether the assessments imposed by the Mushroom 
Promotion, Research, and Consumer Information Act of 
1990, 7 U.S.C. 6101 et seq., on members of the mush- 
room industry for advertising programs designed to 
support the industry violate the First Amendment. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Constitutional and statutory provisions involved ................... 
2 

Statement ........................................................................................ 2 

Reasons for granting the petition ............................................... 
7 

Conclusion ....................................................................................... 15 

Appendix A ..................................................................................... 
1a 

Appendix B ..................................................................................... 
10a 

Appendix C ..................................................................................... 
22a 

Appendix D ..................................................................................... 
24a 

TABLE OF AUTHORITIES 

Cases: 

Gallo Cattle Co. v. California Milk Advisory Bd., 

185 F.3d 969 (9th Cir. 1999) ............................................. 

12, 14 

Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 

457 (1997) ......................................... 

2, 6, 7-8, 9, 10, 11, 12, 14 

Goetz v. Glickman, 149 F.3d 1131 (10th Cir. 1998), 

cert. denied, 525 U.S. 1102 (1999) ................................... 

11, 12 

Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991) ..... 

7 

Matsui Nursery, Inc. v. California Cut Flower 

Comm’n, No. S-96-102 EJG/GGH (E.D. Cal. 

Aug. 6, 1997) ........................................................................... 

6 

United States v. Frame, 885 F.2d 1119 (3d Cir. 

1989), cert. denied, 493 U.S. 1094 (1990) ....................... 

10, 11 

United States v. Gainey, 380 U.S. 63 (1965) ..................... 

8 

United States v. Ruzicka, 329 U.S. 287 (1946) ............. 

13, 15 

Constitution, statutes and regulation: 

U.S. Const. Amend. I ..................................... 

2, 4, 7, 8, 9, 10, 11 

Agricultural Marketing Agreement Act of 1937, 

7 U.S.C. 601 et seq. ................................................................. 

8 

Beef Promotion and Research Act of 1985, 7 U.S.C. 

2901 et seq. ........................................................................... 11, 13 

(III) 

IV 

Statutes and regulation—Continued: 
Page 

7 U.S.C. 2904(B) ................................................................ 

11 

Mushroom Promotion, Research, and Consumer Infor- 
mation Act of 1990, Pub. L. No. 101-624, Title XIX, 

Subtitle B, §§ 1921-1933, 104 Stat. 3854-3965 (7 U.S.C. 

6101 et seq.) ............................................................................. 

2, 7 

7 U.S.C. 6101(a)(5) .......................................... 

3, 13, 24a-25a 

7 U.S.C. 6101(a)(6) .............................................. 

3, 9, 13, 25a 

7 U.S.C. 6104(b)(1) ..................................................... 

3, 25a 

7 U.S.C. 6104(b)(2) ................................................ 

3, 26a-27a 

7 U.S.C. 6104(c)(4) ........................................................ 

3, 27a 

7 U.S.C. 6104(g)(1)(A) ................................................. 

3, 27a 

7 U.S.C. 6104(g)(1)(B) .......................................... 

3, 27a-28a 

7 U.S.C. 6104(g)(2) ........................................................... 

3 

7 U.S.C. 6104(h) ............................................................ 

3, 28a 

7 U.S.C. 6105(a) ................................................................ 

3 

7 U.S.C. 6105(b)(1)(A) ..................................................... 

4 

7 U.S.C. 6105(b)(1)(B) ..................................................... 

4 

7 U.S.C. 6106(a) ................................................................ 

4 

7 U.S.C. 6107(a) ................................................................ 

4 

7 U.S.C. 2101 et seq ................................................................... 

13 

7 U.S.C. 2611 et seq. .................................................................. 

13 

7 U.S.C. 2701 et seq. .................................................................. 

13 

7 U.S.C. 4501 et seq. .................................................................. 

13 

7 U.S.C. 4601 et seq. .................................................................. 

13 

7 U.S.C. 4801 et seq. .................................................................. 

13 

7 U.S.C. 4901 et seq. .................................................................. 

14 

7 U.S.C. 6001 et seq. .................................................................. 

14 

7 U.S.C. 6201 et seq. .................................................................. 

14 

7 U.S.C. 6301 et seq. .................................................................. 

14 

7 U.S.C. 6401 et seq. .................................................................. 

13 

7 U.S.C. 6801 et seq. .................................................................. 

14 

7 U.S.C. 7101 et seq. .................................................................. 

14 

7 U.S.C. 7411 et seq. (Supp. IV 1998) .................................... 

14 

7 U.S.C. 7441 et seq. (Supp. IV 1998)...................................... 

14 

7 U.S.C. 7461 et seq. (Supp. IV 1998)...................................... 14 

V 

Statutes and regulations—Continued: 
Page 

7 U.S.C. 7481 et seq. .................................................................. 

14 

7 C.F.R.: 

Pt. 1209 .................................................................................... 

4 

Pt. 1216 .................................................................................... 

14 

Pt. 1218 .................................................................................... 

14 

Miscellaneous: 

Agricultural Marketing Serv., United States Dep’t 
of Agriculture, Mushroom Industry Votes to Con- 
tinue Promotion Program, Release No. AMS-071-98 
(Mar. 20, 1998) ........................................................................ 4 

In the Supreme Court of the United States 

No. 00-276 

UNITED STATES OF AMERICA AND 

UNITED STATES DEPARTMENT OF AGRICULTURE, 
PETITIONERS 

v. 

UNITED FOODS, INC. 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

PETITION FOR A WRIT OF CERTIORARI 

The Solicitor General, on behalf of the United States 
of America and the United States Department of Agri- 
culture, respectfully petitions for a writ of certiorari to 
review the judgment of the United States Court of 
Appeals for the Sixth Circuit in this case. 

OPINIONS BELOW 

The opinion of the court of appeals (App., infra, 1a- 
9a) is reported at 197 F.3d 221. The opinion of the dis- 
trict court (App., infra, 10a-21a) is unreported. 

JURISDICTION 

The judgment of the court of appeals was entered on 
November 23, 1999. A petition for rehearing was de- 
nied on March 23, 2000 (App., infra, 22a-23a). On June 

(1) 

2 

9, 2000, Justice Stevens extended the time for filing a 
petition for a writ of certiorari to and including July 21, 
2000, and, on July 13, 2000, Justice Stevens further 
extended that time to and including August 18, 2000. 
The jurisdiction of this Court is invoked under 28 
U.S.C. 1254(1). 

CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED 

1. The First Amendment to the United States Con- 
stitution provides in pertinent part: 

Congress shall make no law * * * abridging the 
freedom of speech * * *. 

2. The relevant provisions of the Mushroom Pro- 
motion, Research, and Consumer Information Act of 
1990, Subtitle B of Title XIX of the Food, Agriculture, 
Conservation, and Trade Act of 1990, Pub. L. No. 101- 
624, §§ 1921-1933, 104 Stat. 3854-3865 (7 U.S.C. 6101- 
6112) are reproduced at App., infra, 24a-28a. 

STATEMENT 

This case concerns the constitutionality of a generic 
advertising program for mushrooms that is similar to 
the generic advertising programs for California tree 
fruit upheld in Glickman v. Wileman Brothers & 
Elliott, Inc., 521 U.S. 457 (1997). The court of appeals 
held that the mushroom advertising program vio- 
lates the First Amendment, distinguishing Wileman 
Brothers on the ground that mushrooms are not subject 
to federal regulation that is as extensive as that 
applicable to California tree fruit. 

1. Congress enacted the Mushroom Promotion, 
Research, and Consumer Information Act of 1990, 7 
U.S.C. 6101-6112 (Mushroom Act), after finding that 
“the maintenance and expansion of existing markets 

3 

and uses” for mushrooms are “vital to the welfare of 
producers and those concerned with marketing and 
using mushrooms, as well as to the agricultural econ- 
omy of the Nation.” 7 U.S.C. 6101(a)(5). Congress 
determined that the market for mushrooms could most 
effectively be maintained and expanded through “the 
cooperative development, financing, and implementa- 
tion of a coordinated program of mushroom promotion, 
research, and consumer information.” 7 U.S.C. 
6101(a)(6). 

To that end, the Mushroom Act authorizes the 
Secretary of Agriculture to issue an order establishing 
a Mushroom Council that would, inter alia, propose to 
the Secretary “projects of mushroom promotion, re- 
search, consumer information, and industry informa- 
tion.” 7 U.S.C. 6104(c)(4).1 The Mushroom Act pro- 
vides that any such projects would be funded through 
assessments collected from mushroom producers and 
importers for the domestic fresh-mushroom market. 
7 U.S.C. 6104(g)(1)(A) and (B).2 The Mushroom Act 
expressly prohibits the use of the assessments “in any 
manner for the purpose of influencing legislation or 
governmental action or policy.” 7 U.S.C. 6104(h).3 

1 The Mushroom Act provides that the Mushroom Council is to 
be composed of persons nominated by mushroom producers and 
importers and selected by the Secretary. 7 U.S.C. 6104(b)(1) and 
(2). 

2 The Mushroom Act provides that the assessment is to be 
based on the quantity of mushrooms produced or imported. 

7 U.S.C. 6104(g)(2). 

3 The assessments may be used, however, to develop proposals 
to the Secretary for amendments to the Mushroom Order or for 
voluntary grade and quality standards for mushrooms. 7 U.S.C. 
6104(h). 

4 

The Secretary of Agriculture issued an order, pur- 
suant to the Mushroom Act, that took effect in 1993. 
See 7 C.F.R. Pt. 1209 (Mushroom Order). Before the 
Mushroom Order took effect, the Secretary submitted 
the Order to a referendum of mushroom producers and 
importers, as required by the Mushroom Act. 7 U.S.C. 
6105(a). The Mushroom Act also required the Secre- 
tary to conduct a second such referendum after the 
Mushroom Order had been in effect for five years. 
7 U.S.C. 6105(b)(1)(A). In that referendum, which was 
conducted in 1998, a substantial majority of mushroom 
producers and importers voted to retain the Mushroom 
Order. App., infra, 15a.4 The Secretary is also author- 
ized to conduct additional referenda on the Mushroom 
Order if 30% of the mushroom producers and importers 
request one. 7 U.S.C. 6105(b)(1)(B). 

2. Respondent United Foods, Inc., a mushroom pro- 
ducer, has refused since 1996 to pay its assessments 
under the Mushroom Act and the Mushroom Order. 
C.A. App. 12; see App., infra, 15a. Instead, respondent 
filed a petition with the Secretary of Agriculture, 
pursuant to 7 U.S.C. 6106(a), claiming that the Mush- 
room Act, the Mushroom Order, and the assessments 
imposed thereunder violate the First Amendment. 
C.A. App. 93, 98. The United States then filed an action 
against respondent in district court, pursuant to 7 
U.S.C. 6107(a), seeking to enforce the terms of the 
Mushroom Order and to require respondent to comply 

4 In 1998, 80% of those voting in the referendum, representing 
70% of the volume of mushrooms produced by all those who voted, 
favored the continuation of the Mushroom Order. Agricultural 
Marketing Serv., United States Dep’t of Agriculture, Mushroom 
Industry Votes to Continue Promotion Program, Release No. 
AMS-071-98 (Mar. 20, 1998). 

5 

with it. C.A. App. 9. The two actions were stayed in 
their respective fora pending this Court’s resolution of 
Wileman Brothers. App., infra, 11a. 

After the decision in Wileman Brothers, the admin- 
istrative law judge assigned to respondent’s case dis- 
missed the petition, rejecting the argument that Wile- 
man Brothers “is distinguishable because the peach and 
nectarine marketing orders at issue there regulated 
other aspects of the market, and did not have promotion 
as their sole purpose.” C.A. App. 249. 

The Judicial Officer of the Department of Agriculture 
affirmed. The Judicial Officer explained that the 
Mushroom Act and the Mushroom Order “have the 
very same three characteristics which the Court found 
dispositive of the First Amendment issue in [Wileman 
Brothers].” C.A. App. 274. Specifically, the Judicial 
Officer explained, the Mushroom Act and the Mush- 
room Order do not prohibit respondent from commu- 
nicating any message to any audience, do not compel 
respondent to speak or be publicly associated with the 
Mushroom Council’s promotion program, and do not 
compel respondent to finance any political or ideological 
views. Id. at 274-276. 

Respondent then filed a complaint in district court. 
The court consolidated that action with the United 
States’ enforcement action, and granted the United 
States’ motions for summary judgment. App., infra, 
10a-21a. The court held that Wileman Brothers “is 
clearly dispositive of [respondent’s] First Amendment 
challenge to the [Mushroom Act] and the Order.” Id. at 
18a. The court rejected respondent’s effort to distin- 
guish Wileman Brothers on the ground that the mush- 
room industry is not as extensively regulated as the 
tree fruit industry. The court reasoned that Wileman 
Brothers “did not turn on the degree to which [the] 

6 

State or Federal Government has otherwise displaced 
free market competition”; rather, the court understood 
Wileman Brothers as holding that “compelled participa- 
tion in a generic advertising program is itself a form of 
economic regulation whose efficacy is to be judged by 
legislatures, Government officials and producers, and 
not by the Court.” Ibid. (quoting Matsui Nursery, Inc. 

v. California Cut Flower Comm’n, No. S-96-1012 
EJG/GGH (E.D. Cal. Aug. 6, 1997), slip op., 12-13). 

3. The United States Court of Appeals for the Sixth 
Circuit reversed. App., infra, 1a-9a. The court con- 
cluded that the Mushroom Act and the Mushroom 
Order violate the First Amendment to the extent that 
they require mushroom producers and importers to pay 
an assessment for a generic advertising program. Id. at 
8a-9a. 

The court of appeals read Wileman Brothers as 
holding that a generic advertising program funded by 
mandatory assessments must satisfy two conditions in 
order to withstand constitutional scrutiny: first, the 
advertising must be “germane[] to a valid, comprehen- 
sive, regulatory scheme,” and, second, the advertising 
must be “nonideological.” App., infra, 7a. The panel 
noted that Wileman Brothers had emphasized that the 
generic advertising program for California tree fruit 
possessed both characteristics—that is, the advertising 
program was “part of a broader collective enterprise in 
which [the producers’] freedom to act independently is 
already constrained by the regulatory scheme,” id. at 5a 
(quoting Wileman Bros., 521 U.S. at 469), and was “not 

7 

used to fund ideological activities,” id. at 6a (quoting 
Wileman Bros., 521 U.S. at 473).5 

The court of appeals then applied its two-part test to 
the generic advertising program established by the 
Mushroom Act and the Mushroom Order. App., infra, 
8a-9a. The court did not suggest that the generic ad- 
vertising program compels members of the mushroom 
industry to fund ideological activities. But the court 
nonetheless concluded that, because the generic adver- 
tising program is not part of a comprehensive scheme of 
regulation of the mushroom industry, the program 
violates the First Amendment to the extent that it 
imposes assessments on members of the industry. Ibid. 

REASONS FOR GRANTING THE PETITION 

The court of appeals has held unconstitutional the 
assessment provisions of the Mushroom Promotion, 
Research, and Consumer Information Act, 7 U.S.C. 
6101 et seq., and the Mushroom Order promulgated by 
the Secretary of Agriculture thereunder, as a law 
“abridging the freedom of speech” within the meaning 
of the First Amendment. U.S. Const. Amend. I. That 
decision misconstrues this Court’s precedents, includ- 
ing Glickman v. Wileman Brothers & Elliott, Inc., 521 
U.S. 457 (1997), and places unwarranted restrictions on 

5 The court of appeals reasoned that mandatory advertising 
assessments are justified in an extensively regulated industry, but 
not otherwise, in order to prevent members of the industry from 
“tak[ing] advantage of their monopoly power resulting from regu- 
lation of price and supply without paying for whatever commercial 
benefits [they] receive at the hands of the government.” App., 
infra, 7a-8a. The court found support for such a “principle of recip- 
rocity” in Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991), 
which involved compelled contributions to a public-employee union 
in the context of an “agency-shop” arrangement. App., infra, 8a. 

8 

Congress’s authority to engage in “a species of eco- 
nomic regulation,” id. at 477, designed to stabilize and 
strengthen the market for an agricultural commodity. 
Certiorari is warranted to review the court of appeals’ 
“exercise of the grave power of annulling an Act of 
Congress,” United States v. Gainey, 380 U.S. 63, 65 
(1965), and to resolve disagreement among the lower 
courts concerning the constitutionality of generic ad- 
vertising programs for various agricultural commodi- 
ties. 

1. In Wileman Brothers, this Court rejected a First 
Amendment challenge to the generic advertising pro- 
grams for California peaches, plums, and nectarines 
authorized by the Agricultural Marketing Agreement 
Act of 1937, 7 U.S.C. 601 et seq. Those generic advertis- 
ing programs, like the generic advertising program for 
mushrooms in this case, were funded by mandatory 
assessments imposed on producers or handlers of the 
commodities. The Court concluded that the generic ad- 
vertising programs in Wileman Brothers were subject 
to scrutiny not under the “heightened standard appro- 
priate for the review of First Amendment issues,” but 
instead under the more deferential standard “appropri- 
ate for the review of economic regulation.” 521 U.S. at 
469. 

The Court identified three characteristics that distin- 
guish such generic advertising programs from laws that 
abridge the freedom of speech protected by the First 
Amendment: first, the programs “impose no restraint 
on the freedom of any producer to communicate any 
message to any audience”; second, the programs “do not 
compel any person to engage in any actual or symbolic 
speech”; and, third, the programs “do not compel the 
producers to endorse or to finance any political or 
ideological views,” much less views with which they 

9 

disagree. Wileman Bros., 521 U.S. at 469-470; see also 
id. at 470-472. Accordingly, the Court concluded that 
“none of our First Amendment jurisprudence provides 
any support for the suggestion that the promotional 
regulations should be scrutinized under a different 
standard” from that applicable to other economic regu- 
lations. Id. at 470. 

Here, based on the same three distinctions identified 
by the Court in Wileman Brothers, the generic adver- 
tising program for mushrooms is unlike laws that have 
been held to violate the First Amendment. The Mush- 
room Act and the Mushroom Order do not restrain the 
freedom of respondent or other producers “to com- 
municate any message to any audience,” do not compel 
respondent or other producers “to engage in any actual 
or symbolic speech,” and do not require respondent or 
other producers “to endorse or to finance any political 
or ideological views.” Wileman Bros., 521 U.S. at 469- 
470. They merely require respondent and other pro- 
ducers to share in the costs of commercial messages, 
without any ideological content, that are germane to 
the statutory purpose of “maintain[ing] and expand[ing] 
existing markets for mushrooms.” 7 U.S.C. 6101(a)(6). 
See Wileman Bros., 521 U.S. at 473 (explaining that the 
marketing orders in that case did not implicate the 
First Amendment’s concern with compelled funding of 
certain speech because “(1) the generic advertising of 
California peaches and nectarines is unquestionably 
germane to the purposes of the marketing orders and, 
(2) in any event, the assessments are not used to fund 
ideological activities”). On that basis, the court of 
appeals should have concluded that the generic adver- 
tising program in this case, like the generic advertising 
programs in Wileman Brothers, is “a species of eco- 
nomic regulation that should enjoy the same strong 

10 

presumption of validity that we accord to other policy 
judgments made by Congress.” Id. at 477. 

The court of appeals nonetheless departed from the 
holding in Wileman Brothers on the ground that the 
mushroom industry is “unregulated” whereas the Cali- 
fornia peach, plum, and nectarine industries are 
“collectivized.” App., infra, 8a. This Court’s analysis in 
Wileman Brothers did not, however, center on the 
extent to which those industries were regulated. To be 
sure, the Court did “stress the importance of the statu- 
tory context” in which Wileman Brothers arose, noting 
that the advertising programs were “a part of a broader 
collective enterprise in which [fruit growers’] freedom 
to act independently is already constrained by the 
regulatory scheme.” 521 U.S. at 469. But that discus- 
sion was in Part III of the Court’s opinion, which essen- 
tially identified what was and was not at issue in the 
case, see id. at 467-468, and described the context in 
which the case arose, see id. at 469. The Court’s First 
Amendment analysis, on the other hand, was set forth 
in Part IV of the Court’s opinion. See id. at 469-474. 
None of the three grounds on which the Court, in Part 
IV, distinguished the law in Wileman Brothers from 
laws that violate the First Amendment has anything to 
do with the “collectiviz[ation]” of the industry subject 
to the law. Presumably, if the Court had intended its 
decision in Wileman Brothers to turn on the extent of 
regulation of the industry at issue, the Court would not 
merely have stated as a fact that the California tree 
fruit industry was extensively regulated, but would 
also have explained the significance of such a fact to its 
First Amendment analysis. 

Moreover, the Court granted certiorari in Wileman 
Brothers to resolve a conflict between the Ninth Cir- 
cuit’s decision in that case and the Third Circuit’s deci- 

11 

sion in United States v. Frame, 885 F.2d 1119 (1989), 
cert. denied, 493 U.S. 1094 (1990). See Wileman Bros., 
521 U.S. at 466-467. Frame, like the present case, 
involved a First Amendment challenge to a generic 
advertising program established pursuant to a statute 
—there, the Beef Promotion and Research Act of 1985, 
7 U.S.C. 2901 et seq. (Beef Act)—that does not exten- 
sively regulate the relevant sector of the agricultural 
industry. The Beef Act, like the Mushroom Act, is 
concerned solely with “promotion and advertising, re- 
search, consumer information, and industry informa- 
tion” funded through assessments on producers. 
7 U.S.C. 2904(4)(B); see Frame, 885 F.2d at 1122 (The 
Beef Act “was structured as a ‘self-help’ measure that 
would enable the beef industry to employ its own 
resources and devise its own strategies to increase beef 
sales, while simultaneously avoiding the intrusiveness 
of government regulation and the cost of government 
‘handouts.’ ”). If the Court’s decision in Wileman 
Brothers were limited to generic advertising programs 
imposed under marketing orders comprehensively 
regulating a commodity, then the circuit conflict that 
the Court identified in Wileman Brothers would not 
have been resolved. 

2. Quite aside from the Third Circuit’s pre-Wileman 
Brothers decision in Frame, the court of appeals’ 
decision in this case conflicts with the Tenth Circuit’s 
post-Wileman Brothers decision in Goetz v. Glickman, 
149 F.3d 1131 (1998), cert. denied, 525 U.S. 1102 (1999), 
which rejected a First Amendment challenge to the 
generic advertising program established pursuant to 
the Beef Act. The plaintiff in Goetz argued that 
Wileman Brothers was inapplicable because the Beef 
Act “is not an overall regulatory scheme” and the beef 
industry remains “highly competitive.” Appellant’s 

12 

Supp. Br. at 6, Goetz, supra.6 The Tenth Circuit sum- 
marily concluded, however, that “under the Supreme 
Court’s decision in Wileman Bros., [the plaintiff’s] First 
Amendment claim is fruitless.” Goetz, 149 F.3d at 1139. 

The Ninth Circuit, somewhat similarly to the Sixth 
Circuit, has read Wileman Brothers to require an 
analysis of whether producers are being compelled to 
fund a generic advertising program “as a part of a 
broader collective enterprise in which their freedom to 
act independently is already constrained.” Gallo Cattle 
Co. v. California Milk Advisory Bd., 185 F.3d 969, 975 
(1999) (quoting Wileman Bros., 521 U.S. at 469). The 
Ninth Circuit further explained that such an analysis 
should be based on “the entire regulatory scheme” 
applicable to a given commodity, and not merely the 
particular statute or marketing order that establishes a 
generic advertising program. Id. at 975 & n.5. The 
court thus rejected the plaintiff ’s argument that Wile- 
man Brothers was inapplicable to the state marketing 
order in that case, which did no more than establish a 
collective advertising and information program for milk 
and dairy products, because “California milk producers 
are regulated to the same extent as, if not more than, 
the tree fruit growers in Wileman,” albeit not under 
the particular marketing order at issue. Id. at 974. 

3. The court of appeals’ decision significantly under- 
mines the nationwide generic advertising program for 
mushrooms—a program that Congress determined to 
be “necessary to maintain and expand existing markets 

6 This Court decided Wileman Brothers while Goetz was pend- 
ing on appeal. The Tenth Circuit directed the parties to file sup- 
plemental briefs “addressing the effect of [Wileman Brothers] on 
Goetz’s first amendment claim.” Goetz, 149 F.3d at 1135. 

13 

for mushrooms,” and thus “vital to the welfare of 
producers * * * as well as to the agricultural economy 
of the Nation.” 7 U.S.C. 6101(a)(5) and (6). It exempts 
mushroom producers and importers in the Sixth Circuit 
from contributing to the generic advertising program. 
It also encourages mushroom producers and importers 
outside the Sixth Circuit to withhold their payments 
until the constitutionality of such programs is defini- 
tively resolved. As this Court recognized with respect 
to another type of agricultural marketing program 
supported by assessments on handlers of a commodity, 
“[f]ailure by handlers to meet their obligations [to pay] 
promptly would threaten the whole scheme,” and 
“[e]ven temporary defaults by some handlers may work 
unfairness to others, encourage wider non-compliance, 
and engender those subtle forces of doubt and distrust 
which so readily dislocate delicate economic arrange- 
ments.” United States v. Ruzicka, 329 U.S. 287, 293 
(1946). 

In addition to the generic advertising program for 
mushrooms, Congress has authorized, and the Secre- 
tary of Agriculture has implemented, similar generic 
advertising programs for a number of other agricultural 
commodities. Those programs, like the program in this 
case, are not imposed as part of a statute or marketing 
order that comprehensively regulates the commodity. 
See, e.g., 7 U.S.C. 2101 et seq. (cotton); 7 U.S.C. 2611 et 
seq. (potatoes); 7 U.S.C. 2701 et seq. (eggs); 7 U.S.C. 
2901 et seq. (beef); 7 U.S.C. 4501 et seq. (dairy products); 
7 U.S.C. 4801 et seq. (pork); 7 U.S.C. 6401 et seq. (fluid 
milk).7 Moreover, Congress recently enacted a statute, 

7 See also, e.g., 7 U.S.C. 4601 et seq. (honey); 7 U.S.C. 4901 et 
seq. (watermelon); 7 U.S.C. 6301 et seq. (soybeans); 7 U.S.C. 7481 et 

14 

7 U.S.C. 7411 et seq. (Supp. IV 1998), that authorizes 
marketing programs for any agricultural commodity, 
under which generic advertising programs have re- 
cently gone into effect for peanuts, 7 C.F.R. Pt. 1216, 
and blueberries, 7 C.F.R. Pt. 1218. Several States have 
established their own commodity marketing programs, 
some of which could be categorized as involving only 
generic advertising funded through assessments on 
producers of the commodity. See, e.g., Br. of Amici 
Curiae Attorneys General of Arizona et al. in Support 
of Petition for Writ of Certiorari at 1-3 & App. 1-4, 
Wileman Bros., supra (describing commodity market- 
ing programs in 11 States); see, e.g., Gallo Cattle Co., 
185 F.3d at 974-978 (upholding generic advertising pro- 
gram established under state marketing order). 

We do not mean to imply that all of those programs 
would necessarily be invalidated under the Sixth Cir- 
cuit’s analysis in this case.8 

At a minimum, however, 
the Sixth Circuit’s decision creates considerable uncer- 
tainty about the constitutionality of other federal and 
state generic advertising programs, thereby complicat- 

seq. (popcorn). Additional such programs, although authorized by 
Congress, are not currently in effect. See, e.g., 7 U.S.C. 6001 et seq. 
(pecans); 7 U.S.C. 6201 et seq. (limes); 7 U.S.C. 6801 et seq. (cut 
flowers); 7 U.S.C. 7101 et seq. (sheep and sheep products); 7 U.S.C. 
7441 et seq. (canola and rapeseed) (Supp. IV 1998); 7 U.S.C. 7461 et 

seq. (Supp. IV 1998) (kiwi fruit). 

8 For example, under the analysis employed by the Ninth Cir- 
cuit in Gallo Cattle, 185 F.3d at 975 & n.5, courts may consider all 
federal and state regulation of a commodity, and not merely the 
statute and order establishing a generic advertising program, to 
determine whether the commodity is regulated to the same extent 
as the tree fruit in Wileman Brothers. Some generic advertising 
programs, such as that in Gallo Cattle itself, would be sustained 
under that approach. 

15 

ing the administration of such programs, “encourag[ing] 
wider non-compliance, and engender[ing] those subtle 
forces of doubt and distrust which so readily dislocate 
delicate economic arrangements,” Ruzicka, 329 U.S. at 
293. Certiorari is warranted here in order to eliminate 
that broader uncertainty, as well as to review the Sixth 
Circuit’s holding of an Act of Congress unconstitutional 
and to resolve the circuit conflict that holding has 
created. 

CONCLUSION 

The petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

DAVID W. OGDEN 

Assistant Attorney General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

BARBARA MCDOWELL 

Assistant to the Solicitor 

General 

DOUGLAS N. LETTER 
AUGUST E. FLENTJE 

Attorneys 

AUGUST 2000 

APPENDIX A 

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

No. 98-6436 

UNITED FOODS, INC., PLAINTIFF-APPELLANT 

v. 

UNITED STATES OF AMERICA; 
UNITED STATES DEPARTMENT OF 

AGRICULTURE, DEFENDANTS-APPELLEES 

[Argued: Sept. 23, 1999 
Decided and Filed: Nov. 23, 1999 
Rehearing and Suggestion for Rehearing 
En Banc Denied March 23, 2000] 

OPINION 

Before: MERRITT and CLAY, Circuit Judges; 

ALDRICH,  District Judge. 

MERRITT, Circuit Judge. 

In this case of compelled, commercial speech chal- 
lenged under the First Amendment, the Department of 
Agriculture requires the plaintiff, a mushroom pro- 

• The Honorable Ann Aldrich, United States District Judge 
for the Northern District of Ohio, sitting by designation. 

(1a) 

2a 

ducer, to contribute funds for advertising mushrooms, 
on a regional basis, as authorized by the Mushroom Pro- 
motion, Research, and Consumer Information Act of 
1990, 7 U.S.C. § 6101 et seq.1 The District Court upheld 

1 Enacted by Congress in 1990, the Mushroom Act states: 

It is declared to be the policy of congress that it is in the 

public interest to authorize the establishment of an orderly 
procedure for financing through adequate assessments on 
mushrooms produced domestically or imported into the 
United States, program of promotion, research, and consumer 
and industry information designed to– 

(1) strengthen the mushroom industry’s position in the 
marketplace; 

(2) maintain and expand existing markets and uses for 
mushrooms; and 

(3) develop new markets and uses for mushrooms. 

7 U.S.C. § 6101(b). These policy objectives are supported by 

findings set forth in the Act that mushrooms are not only an 
important food valuable to the human diet, but that they play a 
significant role in this country’s economy and that their 
production benefits the environment. The Act does not permit 
the regulation of prices or mandatory quantity or quality 
controls of mushrooms produced and sold by farmers, nor does 
it subsidize or restrict the growth of mushrooms or otherwise 
collectivize the industry. It is basically a commercial 
advertising statute designed to assess mushroom growers for 
the cost of advertising. 7 C.F.R. Part 1209.40(a). 

Pursuant to the Mushroom Act, the Secretary of Agri- 
culture promulgated an Order establishing a Mushroom 
Council made up of mushroom producers nominated by pro- 
ducers and importers for appointment by the Secretary. 
7 U.S.C. § 6104(b); 7 C.F.R. Part 1209. The Order generally 
directs the Council to “carry out programs, plans, and projects 
designed to provide maximum benefits to the mushroom 

3a 

the Act and the government’s action compelling pay- 
ments for mushroom advertising. The plaintiff claims 
that other mushroom producers shape the content of 
the advertising to its disadvantage and that the admini- 
strative process allows a majority of producers to cre- 
ate advertising to its detriment. The issue before us is 
whether the answer to the First Amendment question 
presented here should be the same as in the recent case 
of Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 
457, 117 S. Ct. 2130, 138 L.Ed.2d 585 (1997), in which 
the Supreme Court in a controversial 5-4 decision2 up- 
held a similar agricultural advertising program in the 
heavily regulated California tree fruits business 
(peaches, plums and nectarines). But unlike the tree 
fruit business in Wileman, the mushroom growing busi- 
ness in the case before us is unregulated, except for the 
enforcement of a regional mushroom advertising pro- 
gram. 

The government argues that the degree of regulation 
or “collectivization” of an industry should make no First 
Amendment difference on the compelled advertising is- 

industry.” 7 C.F.R. § 1209.39(l). The Council’s activities are 
funded through mandatory assessments on larger producers 
and importers of fresh mushroom products for domestic 
use, based upon poundage of mushrooms marketed in the 
United States and not to exceed a penny per pound 7 U.S.C. 
§ 6104(g), 7 C.F.R. § 1209.51. The Council has used these 
funds solely to finance generic advertising efforts on behalf of 
the mushroom industry. 

2 See, e.g., Nicole B. Casarez, Don’t Tell Me What to Say: 
Compelled Commercial Speech and the First Amendment, 
63 MO. L. REV. 929 (1998); Leading Case, Commercial 
Speech—Compelled Advertising, 111 HARV. L. REV. 319 (1997). 

4a 

sue so long as the compelled advertising is nonpolitical 
and so long as the plaintiff is not restricted in its own 
advertising. The plaintiff contends to the contrary that 
the constitutionality of the compelled speech under the 
1990 Mushroom Act—in light of Wileman—must turn 
on the degree of regulation of the industry. The ques- 
tion for us is whether the degree of government regula- 
tion of an industry controls the outcome or whether the 
government is right that this is irrelevant under Wile- 
man. 

In prior restraint and compelled speech cases involv- 
ing nonbroadcast political speech, the First Amend- 
ment prohibition is nearly absolute, Near v. Minnesota, 
283 U.S. 697, 51 S. Ct. 625, 75 L.Ed. 1357 (1931), holding 
that newspapers have a right to publish without prior 
restraint, West Virginia v. Barnette, 319 U.S. 624, 63 S. 
Ct. 1178, 87 L.Ed. 1628 (1943), holding that schoolchil- 
dren may not be compelled to join in a flag salute cere- 
mony, and Miami Herald v. Tornillo, 418 U.S. 241, 94 
S. Ct. 2831, 41 L.Ed.2d 730 (1974), holding that newspa- 
pers may not be compelled to publish a reply by politi- 
cal candidates. But commercial speech compelled by 
government is governed by a different, and as yet un- 
settled, set of principles which require a court to bal- 
ance a number of factors according to its judgment con- 
cerning the welfare of buyers and sellers in the market 
place. 

In the Wileman case, the Supreme Court emphasized 
and reemphasized that the compelled advertising pro- 
gram for California tree fruits under the Agricultural 
Marketing Agreement Act of 1937 contemplates “a uni- 
form price to all producers in a particular market,” a 
“policy of collective, rather than competitive, market- 

5a 

ing” and an exemption from the antitrust laws in order 
“to avoid unreasonable fluctuation in supplies and 
prices.” Wileman, 521 U.S. at 461, 117 S. Ct. 2130. In 
his opinion for five members of the Court, Justice Ste- 
vens repeatedly “stress[ed] the importance” of the fact 
that the advertising takes place “as a part of a broader 
collective enterprise in which [the producers’] freedom 
to act independently is already constrained by the 
regulatory scheme.” Id. at 469, 117 S. Ct. 2130. In con- 
trast, the mushroom market has not been collectivized, 
exempted from antitrust laws, subjected to a uniform 
price, or otherwise subsidized through price supports or 
restrictions on supply. Except for the compelled adver- 
tising program assessing growers based on their vol- 
ume of mushroom production, there appears to be a 
relatively free market in mushrooms, both processed 
and fresh.3 

3 Justice Souter’s twenty-five page dissenting opinion in 
Wileman provides an extensive history of compelled advertising in 
the market for agricultural commodities. His reading of the 
history of the agricultural regulations is that it shows that the 
advertising is simply the result of interest group lobbying, not a 
response to economic conditions. See Wileman, 521 U.S. at 491-99, 
117 S .Ct. 2130 (Souter, J., dissenting). Justice Souter’s dissent 
recounts that in 1952 Congress began providing for compelled 
advertising for an ever-expanding list of agricultural commodities. 
Sometimes the legislation, and the marketing orders authorized by 
the legislation, cover a commodity from just one section of the 
country—for example, California peaches but not Georgia peaches. 
In recent years Congress has added many farm products to the list 
in which compelled advertising is the main or the only form of 
regulation. Justice Souter explains that this comes about because 
of “the view of the Department of Agriculture that ‘any fruit or 
vegetable commodity group which actively supports the develop- 
ment of a promotion program by this means should be given an 

6a 

On the other side of the ledger, the government cor- 
rectly argues that Justice Stevens also emphasized re- 
peatedly in his opinion that the compelled agricultural 
advertising in Wileman is not a restriction on commer- 
cial advertising as in cases that have invalidated such 
regulation, see, e.g., Central Hudson Gas & Elec. Corp. 

v. Public Serv. Comm’n of N.Y., 447 U.S. 557, 100 S. Ct. 
2343, 65 L.Ed.2d 341 (1980), because separate, individ- 
ual, producer advertising of tree fruits is not prohibited 
or restricted. See Wileman, 521 U.S. at 469-70, 117 S. 
Ct. 2130. The opinion emphasizes that the test for 
compelled advertising is not the same as the four-part 
test for restrictions on advertising set out in Central 
Hudson. See id. The government also correctly argues 
that Justice Stevens repeatedly emphasizes that no 
“symbolic,” “ideological” or “political” speech is in- 
volved in the tree fruit advertising. See id. Justice 
Stevens’ opinion sets out these various factors concisely 
when he says that the compelled advertising of tree 
fruits passes muster “because (1) the generic advertis- 
ing of California peaches and nectarines is unquestiona- 
bly germane to the purposes of the marketing orders 
[which collectivize the industry] and, (2) in any event, 
the assessments are not used to fund ideological activi- 

opportunity to do so.’ ” Id. at 495-96, 117 S. Ct. 2130 (citing S. REP. 
NO. 92-295, at 2 (1971)). Justice Souter concludes that these 
programs of compelled advertising appear to rest only on “the 
preference of a local interest group.” Id. at 497, 117 S. Ct. 2130. 
“Without more, the most reasonable inference is not of a 
substantial Government interest, but effective politics on the part 
of producers who see the chance to spread their advertising costs.” 
Id. at 498, 117 S. Ct. 2130. 

7a 

ties.” Wileman, 521 U.S. at 473, 117 S. Ct. 2130 
(emphasis added). 

The question for us then is whether these two ele- 
ments—(1) germaneness to a valid, comprehensive, 
regulatory scheme and (2) nonideological content—are 
independent of each other and each provide a sufficient 
basis for upholding compelled commercial speech. In 
other words, even though the mushroom advertising 
program before us is not “germane” to any collective 
program setting prices or supply, does the fact that the 
advertising is “nonideological” or “nonpolitical” in na- 
ture mean that it should be permitted under the First 
Amendment? 

We do not read the majority opinion in Wileman as 
saying that any compelled commercial speech that is 
nonpolitical or nonsymbolic or nonideological does not 
warrant First Amendment protection. We conclude 
that the explanation for the Wileman decision is to be 
found in the fact that the California tree fruit industry 
is fully collectivized and is no longer a part of a free 
market, as well as in the nonpolitical nature of the com- 
pelled speech. The majority uses this concept of collec- 
tivization and the nonideological nature of the adver- 
tising together. The conjunction “and”—germaneness 
“and” nonpolitical—is used in the Court’s holding. Our 
interpretation of Wileman is that if either of the two 
elements is missing—either the collectivization of the 
industry or the purely commercial nature of the adver- 
tising—the First Amendment invalidates the compelled 
commercial speech, absent some other compelling justi- 
fication not present in the case before us. The Court’s 
holding in Wileman, we believe, is that nonideological, 
compelled, commercial speech is justified in the context 

8a 

of the extensive regulation of an industry but not 
otherwise. The purpose of this principle joining 
regulation and content is to deter free riders who take 
advantage of their monopoly power resulting from 
regulation of price and supply without paying for 
whatever commercial benefits such free riders receive 
at the hands of the government. Whether wise or un- 
wise, or true or untrue, the legislative theory behind 
such extensive regulation is that the interests of pro- 
ducers and consumers are furthered by the monopoly 
powers inherent in government control of price and 
supply. In exchange for such power in the market 
place, members of the industry may have to provide 
certain benefits to their industry in the form of pay- 
ments for nonideological advertising of industry pro- 
ducts. If an economic actor chooses to remain aloof 
from the regulated industry, he owes no reciprocal duty 
to promote the industry; but if he chooses to join, he has 
a reciprocal duty to promote its interest. This principle 
of reciprocity designed to control free-ridership is 
essentially the same basis upon which the Supreme 
Court upheld some, and struck down other, compelled 
speech in the union, closed-shop context in Lehnert v. 
Ferris Faculty Ass’n, 500 U.S. 507, 111 S. Ct. 1950, 114 
L.Ed.2d 572 (1991). 

Applying this interpretation to the case at hand, we 
find that the context of the mushroom business is en- 
tirely different from the collectivized California tree 
fruit business. Mushrooms are unregulated. Hence the 
compelled commercial speech is not a price the mem- 
bers must pay under the reciprocity principle in order 
to further their self-interest which is regarded as aris- 
ing from heavy regulation through marketing orders 
controlling price, supply and quality. Thus in the ab- 

9a 

sence of extensive regulation, the effort by the Depart- 
ment of Agriculture to force payments from plaintiff for 
advertising is invalid under the First Amendment. The 
portions of the Mushroom Act of 1990 which authorize 
such coerced payments for advertising are likewise 
unconstitutional. 

Accordingly, the judgment of the District Court is 
reversed. 

10a 

APPENDIX B 

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 
EASTERN DIVISION 

No. 96-1252 

UNITED STATES OF AMERICA, PLAINTIFF 

v. 

UNITED FOODS, INC., DEFENDANT 

No. 98-1082 

UNITED FOODS, INC., PLAINTIFF 

v. 

UNITED STATES OF AMERICA, DEFENDANT 

[Filed: JULY 31, 1998] 

ORDER GRANTING UNITED STATES’ 
MOTIONS FOR SUMMARY JUDGMENT 

The United States, on behalf of the Department of 
Agriculture (USDA), filed civil action No. 96-1252 on 
October 16, 1996, pursuant to the Mushroom Promotion, 
Research, and Consumer Information Act (MPRCIA), 7 
U.S.C. § 6101 et seq. The complaint seeks to enforce 
against United Foods, Inc., a producer and first handler 
of fresh mushrooms, the terms of an Order issued under 
the MPRCIA by the Secretary of Agriculture. Already 
pending when the action was filed was an 
administrative petition before the USDA on behalf of 

11a 

United Foods, challenging the constitutionality of the 
Order. On November 16, 1996, the United States filed a 
motion for summary judgment or, in the alternative, for 
a preliminary injunction. United Foods responded with 
a motion to stay the proceedings in order to await the 
decision of the United States Supreme Court in a case 
involving the same issues that United Foods had raised. 

On February 11, 1997, the court granted United 
Foods’ motion to stay No. 96-1252. An administrative 
law judge (ALJ) had also stayed proceedings on the 
pending administrative petition. The Supreme Court 
issued its decision in Glickman v. Wileman Bros. & 
Elliott, 117 S. Ct. 2130, on June 25, 1997. The ALJ 
ruled on December 9, 1997, that Wileman Bros. was 
dispositive of the issues raised by United Foods, and 
dismissed the administrative petition. United Foods ap- 
pealed, and a USDA Judicial Officer affirmed. On 
March 23, 1998, United Foods filed civil action No. 98- 
1082, seeking judicial review of the USDA admini- 
strative decision, pursuant to 7 U.S.C. § 6106(b). The 
stay in No. 96-1252 was lifted, and upon motion of 
United Foods, the court consolidated the two cases, as 
the issues raised are identical. The United States has 
moved for summary judgment in both cases, and 
United Foods has responded to the motion. 

Motions for summary judgment are governed by 
Fed. R. Civ. P. 56. If no genuine issue of material fact 
exists and the moving party is entitled to judgment as a 
matter of law, summary judgment is appropriate. Fed. 
R. Civ. P. 56(c). The moving party may support the 
motion for summary judgment with affidavits or other 
proof or by exposing the lack of evidence on an issue for 
which the nonmoving party will bear the burden of 

12a 

proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 
(1986). The opposing party may not rest upon the 
pleadings but must go beyond the pleadings and “by 
affidavits or as otherwise provided in this rule, must set 
forth specific facts showing that there is a genuine issue 
for trial.” Fed. R. Civ. P. 56(e); see also Celotex Corp., 
477 U.S. at 323. 

In enacting the MPRCIA in 1990, Congress made the 
following findings: 

(1) mushrooms are an important food that is a valu- 
able part of the human diet; 

(2) the production of mushrooms plays a significant 
role in the Nation’s economy. . . .; 

(3) mushroom production benefits the environment 
by efficiently using agricultural byproducts; 

(4) mushrooms must be high quality, readily avail- 
able, handled properly, and marketed efficiently 
to ensure that the benefits of this important 
product are available to the people of the United 
States; 

(5) the maintenance and expansion of existing mar- 
kets and uses, and the development of new mar- 
kets and uses, for mushrooms are vital to the 
welfare of producers and those concerned with 
marketing and using mushrooms, as well as to 
the agricultural economy of the Nation; 

(6) the cooperative development, financing, and im- 
plementation of a coordinated program of mush- 
room promotion, research, and consumer infor- 

13a 

mation are necessary to maintain and expand 
existing markets for mushrooms; and 

(7) mushrooms move in interstate and foreign com- 
merce, and mushrooms that do not move in such 
channels of commerce directly burden or affect 
interstate commerce in mushrooms. 

7 U.S.C. § 6101(a). Based on these findings, Congress 
stated: 

It is declared to be the policy of Congress that it is 
in the public interest to authorize the establishment, 
through the exercise of the powers provided in this 
chapter, of an orderly procedure for developing, fi- 
nancing through adequate assessments on mush- 
rooms produced domestically or imported into the 
United States, and carrying out, an effective, con- 
tinuous, and coordinated program of promotion, re- 
search, and consumer and industry information de- 
signed to— 

(1) strengthen the mushroom industry’s posi- 
tion in the marketplace; 

(2) maintain and expand existing markets and 
uses for mushrooms; and 

(3) develop new markets and uses for mush- 
rooms. 

7 U.S.C. § 6101(b). The statute directs the Secretary to 
issue an Order to effectuate this goal of establishing an 
industry-wide program of mushroom promotion, re- 
search, and consumer and industry information. 
7 U.S.C. § 6103(a). 

14a 

The Order issued by the Secretary under the 
MPRCIA provides for the establishment of a Mush- 
room Council made up of mushroom producers nomi- 
nated by producers and importers and appointed by the 
Secretary. The primary function of the Mushroom 
Council is to administer and carry out the terms of the 
Order. 7 U.S.C. § 6104(b), (c)(1); 7 C.F.R. §§ 1209.30- 
1209.40. The activities of the Council, including generic 
advertising efforts, are funded through mandatory as- 
sessments on mushrooms produced in or imported into 
the United States for the domestic, fresh market. The 
assessments are to be collected by all first handlers of 
mushrooms and remitted to the Council, and are not to 
exceed a penny per pound. 7 U.S.C. § 6104(g); 7 C.F.R. 
§ 1209.51. The Order also requires first handlers to 
submit monthly reports to the Council containing speci- 
fied information, including the quantity of mushrooms 
subject to assessment, and the amount of assessments 
remitted. 7 U.S.C. § 6104(i); 7 C.F.R. §§ 1209.60- 
1209.62, 1209.260. 

During the 60-day period prior to the effective date 
of the Order, the Secretary is required to “conduct a 
referendum among mushroom producers and importers 
to ascertain whether the Order shall go into effect.” 
7 U.S.C. § 6105(a)(1). The Order will become effective if 
“the order has been approved by a majority of the pro- 
ducers and importers voting . . . which majority, on 
average, annually produces and imports into the United 
States more than 50 percent of the mushrooms annually 
produced and imported by all those voting in the refer- 
endum.” 7 U.S.C. § 6105(a)(2). After the Order be- 
comes effective, the Secretary must conduct additional 
referendums, at certain specified intervals, to deter- 
mine if the mushroom producers and importers favor 

15a 

continuation, termination, or suspension of the Order. 
7 U.S.C. § 6105(b)(1)(A); 7 C.F.R. §§ 1209.300-1209.307. 
A representative group of at least 30% of the mush- 
room producers and importers may request such a ref- 
erendum at any time. 7 U.S.C. § 6105(b)(1)(B). The 
most recent referendum under the Order was con- 
ducted from February 24-March 13, 1998, with con- 
tinuation favored by 80% of those who voted, repre- 
senting 70% of the volume of mushrooms produced by 
those who voted. 

These cases arise out of United Foods’ refusal to pay 
the assessments or submit the monthly reports re- 
quired by the MPRCIA and the Order. United Foods 
challenges the constitutionality of the statute and the 
Order under the First Amendment, arguing that the 
mandatory assessments are used to support speech 
with which it does not agree. United Foods also argues 
that the statute and Order violate the Equal Protection 
Clause of the Fifth Amendment because certain classes 
of mushroom producers are exempt from the assess- 
ment and reporting requirements. 

In Wileman Bros., the Supreme Court considered a 
First Amendment challenge to marketing orders issued 
pursuant to the Agricultural Marketing Agreement Act 
of 1937 (AMAA), 7 U.S.C. § 601 et seq. A group of 
growers, handlers, and processors of California nectar- 
ines, plums, and peaches asserted that the imposition of 
mandatory assessments used to fund generic advertis- 
ing of those fruits violated the First Amendment by 
compelling them to finance others’ speech. The Su- 
preme Court, however, held that being compelled to 
fund such generic advertising does not implicate the 
First Amendment. Rather, the program was “a species 

16a 

of economic regulation that should enjoy the same 
strong presumption of validity that we accord to other 
policy judgments made by Congress.” 117 S. Ct. at 
2142. 

The Court in Wileman Bros. emphasized that: 

Three characteristics of the regulatory scheme at is- 
sue distinguish it from laws that we have found to 
abridge the freedom of speech protected by the 
First Amendment. First, the marketing orders im- 
pose no restraint on the freedom of any producer to 
communicate any message to any audience. Second, 
they do not compel any person to engage in any ac- 
tual or symbolic speech. Third, they do not compel 
the producers to endorse or to finance any political 
or ideological views. 

117 S. Ct. at 2138. The Court noted that these three 
characteristics served to differentiate the program 
from the various laws and schemes at issue in, for ex- 
ample, Central Hudson Gas & Elec. Corp. v. Public 
Serv. Comm’n of N.Y., 447 U.S. 557 (1980) (commercial 
speech), West Virginia Bd. of Educ. v. Barnette, 319 
U.S. 624 (1943) (compelling actual speech by a particu- 
lar person), and Abood v. Detroit Bd. of Educ., 431 U.S. 
209 (1977)(compelling financial contributions for politi- 
cal purposes with which one does not agree). 117 S. Ct. 
at 2138 nn.12-14. The Court then stated, “none of our 
First Amendment jurisprudence provides any support 
for the suggestion that the promotional regulations 
should be scrutinized under a different standard than 
that applicable to the other anticompetitive features of 
the marketing orders.” Id. at 2138. 

17a 

The Court recognized that the generic advertising in- 
volved in Wileman Bros. was intended to stimulate con- 
sumer demand for California peaches, plums, and nec- 
tarines, and that this “purpose is legitimate and consis- 
tent with the regulatory goals of the overall statutory 
scheme.” Id. at 2141. The mere fact that such generic 
advertising may not be the most effective method of 
promotion, or that those objecting “believe their money 
is not being well spent” does not implicate the First 
Amendment. Id. at 2140. The Court concluded by 
stating, “[t]he mere fact that one or more producers ‘do 
not wish to foster’ generic advertising of their product 
is not a sufficient reason for overriding the judgment of 
the majority of market participants, bureaucrats, and 
legislators who have concluded that such programs are 
beneficial.” Id. at 2142. 

United Foods states that Wileman Bros. involved 
the AMAA, a “detailed regulatory scheme that restricts 
competition,” while the MPRCIA is “free-standing” 
legislation that exists only to collect assessments to be 
used for promotion, advertising, and research. There- 
fore, it is argued, this case is distinguishable, and 
Wileman Bros. is not controlling. However, like other 
courts which have addressed whether Wileman Bros. 
is applicable to “free-standing” legislation, this court 
finds United Foods’ arguments unpersuasive. See 
Goetz v. Glickman, __ F.3d __, 1998 WL 384618 (10th 
Cir. July 10, 1998); Donald B. Mills, Inc. v. United 
States Dept. of Agric., No. CV-F-97-5890 OWW SMS 
(E.D. Cal. Mar 5, 1998) (rejecting the identical argu- 
ments regarding the MPRCIA raised in this case); Mat- 
sui Nursery, Inc. v. California Cut Flower Comm’n, 
No. S-96-102 EJG/GGH (E.D. Cal. Aug. 6, 1997). 

18a 

There is nothing in Wileman Bros. that supports 
United Foods’ assertion that the decision applies only 
to those statutory and regulatory programs that con- 
tain detailed restrictions on competition in a particular 
agricultural market. As succinctly stated by Judge 
Garcia in his ruling in Matsui Nursery: 

The Wileman decision did not turn on the degree to 
which State or Federal Government has otherwise 
displaced free market competition. Rather, the 
Court found that compelled participation in a generic 
advertising program is itself a form of economic 
regulation whose efficacy is to be judged by legis- 
latures, Government officials and producers, and not 
by the Court. . . . 

No. S-96-102 EJG/GGH, slip op., tr. at 12-13. 

Wileman Bros. is clearly dispositive of United Foods’ 
First Amendment challenge to the MPRCIA and the 
Order, and the United States is entitled to summary 
judgment on that claim. 

The court finds that United Foods’ challenge to the 
MPRCIA and the Order on equal protection grounds is 
also without merit. United Foods objects because the 
MPRCIA exempts from the payment of assessments 
three categories of mushrooms or producers: (1) pro- 
ducers who produce or import, on average, less than 
500,000 pounds of mushrooms annually for the fresh 
mushroom market; (2) mushrooms that are exported; 
and (3) mushrooms that are sold to be processed rather 
than for the fresh market. 7 U.S.C. §§ 6102(6), (9), 
& (11); 6104(g)(1)(A)-(B) & (g)(4). 

19a 

The Supreme Court’s equal protection analysis is 
well established. United Foods, as a mushroom pro- 
ducer, is not a member of a “suspect” or “quasi-suspect” 
class, and the exercise of “fundamental rights” is not 
inordinately burdened. Therefore, it is unnecessary to 
apply either the “strict scrutiny” or “intermediate scru- 
tiny” standard. See, e.g., City of Cleburne v. Cleburne 
Living Ctr., 473 U.S. 432, 440-41 (1985). See also 37712, 
Inc. v. Ohio Dept. of Liquor Control, 113 F.3d 614, 621 
(6th Cir. 1997). 

The challenged provisions is this case are appropri- 
ately analyzed using the least demanding standard, the 
“rational relationship” test. Under this test, the legisla- 
tion bears a strong presumption of validity and will be 
sustained if the legislative classification is rationally 
related to any conceivable legitimate governmental in- 
terest. Heller v. Doe by Doe, 509 U.S. 312, 319-21 
(1993); F.C.C. v. Beach Communications, Inc., 508 U.S. 
307, 314-15 (1993); City of Cleburne, 473 U.S. at 439-40; 
Equality Foundation v. City of Cincinnati, 128 F.3d 
289, 293 (6th Cir. 1997); 37712, Inc., 113 F.3d at 621-22. 
Furthermore, “a legislative choice is not subject to 
courtroom fact-finding and may be based on rational 
speculation unsupported by evidence or empirical 
data.” Beach Communications, 508 U.S. at 315. 

As set out earlier in this order, Congress specifically 
found that mushroom production plays a significant role 
in the national economy and benefits the environment. 
Congress also found that the “cooperative development, 
financing and implementation” of a program of mush- 
room promotion, research, and consumer information 
was necessary to maintain and expand existing mar- 
kets, and to develop new markets, for fresh mushrooms. 

20a 

7 U.S.C. § 6102(a). These findings clearly constitute a 
legitimate governmental interest. 

The exemptions set out in the MPRCIA plainly bear 
a rational relationship to the specified governmental in- 
terest. It is reasonable that, given the small percentage 
of mushrooms produced for export compared to the per- 
centage produced for the domestic market, Congress 
would choose to concentrate promotional programs 
solely on the domestic market. In addition, most mush- 
rooms produced in the United States are sold in the 
fresh market. Fresh mushrooms, unlike processed 
mushrooms, have a short shelf life and bring a substan- 
tially higher price per pound. Thus, the markets for 
fresh and processed mushrooms are somewhat distinct, 
and it is not unreasonable to treat them differently. Fi- 
nally, it was not unreasonable for Congress to conclude 
that, compared to those producing over 500,000 pounds 
of mushrooms annually, assessments from small volume 
producers would likely be offset by the administrative 
costs incurred in collecting such small amounts. 

It is clear that the challenged distinctions set out in 
the MPRCIA and the Order easily satisfy the rational 
relationship test, and do not violate the equal protection 
clause. Thus, the United States is also entitled to sum- 
mary judgment on United Foods’ Fifth Amendment 
claim. 

For the foregoing reasons, the United States’ 
motions for summary judgment in these consolidated 
cases are hereby GRANTED. Judgment will be entered 
accordingly. 

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IT IS SO ORDERED. 

/s/ JAMES D. TODD 

JAMES D. TODD 

UNITED STATES DISTRICT 

JUDGE 

Date: July 27, 1998 

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APPENDIX C 

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

No. 98-6436 

UNITED FOODS, INC., PLAINTIFF-APPELLANT 

v. 

UNITED STATES OF AMERICA; 
UNITED STATES DEPARTMENT OF 

AGRICULTURE, DEFENDANTS-APPELLEES 

[Filed: Mar. 23, 2000] 

ORDER 

Before: MERRITT and CLAY, Circuit Judges; and 
ALDRICH,  District Judge. 

The court having received a petition for rehearing en 
banc, and the petition having been circulated not only 
to the original panel members but also to all other 
active judges of this court, and no judge of this court 
having requested a vote on the suggestion for rehear- 
ing en banc, the petition for rehearing has been refer- 
red to the original panel. 

• Hon. Ann Aldrich, Senior United States District Judge for the 
Northern District of Ohio, sitting by designation. 

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The panel has further reviewed the petition for re- 
hearing and concludes that the issues raised in the peti- 
tion were fully considered upon the original submission 
and decision of the case. Accordingly, the petition is 
denied. 

ENTERED BY ORDER OF THE COURT 

/s/ LEONARD GREEN 

LEONARD GREEN 
Clerk 

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APPENDIX D 

STATUTORY PROVISIONS INVOLVED 

1. Section 6101 of Title 7 of the United States Code 
provides: 

Findings and declaration of policy 
(a) Findings 

Congress finds that— 

(1) mushrooms are an important food that is a 
valuable part of the human diet; 

(2) the production of mushrooms plays a 
significant role in the Nation’s economy in that 
mushrooms are produced by hundreds of mush- 
room producers, distributed through thousands of 
wholesale and retail outlets, and consumed by 
millions of people throughout the United States 
and foreign countries; 

(3) mushroom production benefits the envi- 
ronment by efficiently using agricultural bypro- 
ducts; 

(4) mushrooms must be high quality, readily 
available, handled properly, and marketed effi- 
ciently to ensure that the benefits of this impor- 
tant product are available to the people of the 
United States; 

(5) the maintenance and expansion of existing 
markets and uses, and the development of new 
markets and uses, for mushrooms are vital to the 
welfare of producers and those concerned with 

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marketing and using mushrooms, as well as to the 
agricultural economy of the Nation; 

(6) the cooperative development, financing, 
and implementation of a coordinated program of 
mushroom promotion, research, and consumer in- 
formation are necessary to maintain and expand 
existing markets for mushrooms; and 

(7) mushrooms move in interstate and foreign 
commerce, and mushrooms that do not move in 
such channels of commerce directly burden or 
affect interstate commerce in mushrooms. 

(b) Policy 

It is declared to be the policy of Congress that it is in 
the public interest to authorize the establishment 

* * * of an orderly procedure for developing, financing 
through adequate assessments on mushrooms produced 
domestically or imported into the United States, and 
carrying out, an effective, continuous, and coordinated 
program of promotion, research, and consumer and 
industry information designed to– 

(1) strengthen the mushroom industry’s position 
in the marketplace; 

(2) maintain and expand existing markets and 
uses for mushrooms; and 

(3) develop new markets and uses for mushrooms. 

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(c) Construction 

Nothing in this chapter may be construed to provide 
for the control of production or otherwise limit the right 
of individual producers to produce mushrooms. 

2. Section 6103 of Title 7 of the United States Code 
provides, in pertinent part: 

Issuance of orders 
(a) In general 

To effectuate the declared policy of section 6101(b) of 
this title, the Secretary * * * shall issue orders under 
this chapter applicable to producers, importers, and 
first handlers of mushrooms. Any such order shall be 
national in scope. Not more than one order shall be in 
effect under this chapter at any one time. 

* * * * * 

3. Section 6104 of Title 7 of the United States Code 
provides, in pertinent part: 

Required terms in orders 
(a) In general 

Each order issued under this chapter shall contain 
the terms and conditions prescribed in this section. 

(b) Mushroom Council 
(1) Establishment and membership of Council 
(A) Establishment 

The order shall provide for the establishment 
of, and selection of members to, a Mushroom 

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Council that shall consist of at least 4 members 
and not more than 9 members. 

* * * * * 

(c) Powers and duties of Council 

The order shall define the powers and duties of the 
Council, which shall include the following powers and 
duties— 

* * * * * 

(4) to propose, receive, evaluate, approve and 
submit to the Secretary for approval * * * budgets, 
plans, and projects of mushroom promotion, re- 
search, consumer information, and industry informa- 
tion, as well as to contract and enter into agreements 
with appropriate persons to implement such plans or 
projects; 

(5) to develop and propose to the Secretary vol- 
untary quality and grade standards for mushrooms; 

* * * * * 

(g) Assessments 
(1) Collection and payment 
(A) In general 

The order shall provide that each first han- 
dler of mushrooms for the domestic fresh mar- 
ket produced in the United States shall collect, 
in the manner prescribed in the order, assess- 
ments from producers and remit the assess- 
ments to the Council. 

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(B) Importers 

The order also shall provide that each 
importer of mushrooms for the domestic fresh 
market shall pay assessments to the Council in 
the manner precribed by the order. 

* * * * * 

(3) Use of assessments 

The order shall provide that the assessments 
shall be used for payment of the expenses in imple- 
menting and administering this chapter, with 
provision for a reasonable reserve * * *. 

* * * * * 

(h) Prohibition 

The order shall prohibit any funds received by the 
Council under the order from being used in any manner 
for the purpose of influencing legislation or 
governmental action or policy, except that such funds 
may be used by the Council for the development and 
recommendation to the Secretary of amendments to the 
order as prescribed in this chapter and for the 
submission to the Secretary of recommended voluntary 
grade and quality standards for mushrooms under the 
Agricultural Marketing Act of 1946 (7 U.S.C. 1621 et 
seq.).