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 

REPLY BRIEF FOR THE PETITIONERS 

SETH P. WAXMAN 

Solicitor General 

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

TABLE OF AUTHORITIES 

Cases: Page 

Cal-Almond Inc. v. United States Dep’t of Agriculture 
192 F.3d 1272 (9th Cir. 1999), cert. denied, 120 S. Ct. 
2215 (2000) ............................................................................... 
9 

Donald B. Mills, Inc. v. United States Dep’t of 

Agriculture, No. CV-F-97-5890 OWW SMS 
(E.D. Cal. Mar. 5, 1998) ......................................................... 

6 
FCC v. Action for Children’s Television, 503 U.S. 914 
(1992) ........................................................................................ 1 

Gallo Cattle Co. v. United States Dep’t of 

Agriculture, 189 F.3d 473 (9th Cir. 1999) ......................... 
9 

Gerawan Farming, Inc. v. Veneman, 85 Cal. Rptr. 
2d 598 (Ct. App.), review granted, 983 P.2d 728 
(Cal. 1999) ................................................................................ 
4 

Glickman v. Wileman Bros. & Elliott, 521 U.S. 
457 (1997) .............................................................. 

1, 3, 4, 5, 6, 9 

Goetz v. Glickman, 149 F.3d 1131 (10th Cir. 1998), 
cert. denied, 525 U.S. 1102 (1999) ................................. 
6, 7, 9 

Nature’s Dairy v. Glickman, 173 F.3d 429 (6th 

Cir. 1999), cert. denied, 120 S. Ct. 786 (2000) ................... 

9 

United States v. Frame, 885 F.2d 1119 (3d Cir. 1989), 
cert. denied, 493 U.S. 1094 (1990) ....................................... 
4 

Constitution, statutes and regulations: 

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

1, 3, 4, 6, 7, 8, 9 

Beef Promotion and Research Act of 1985, 7 U.S.C. 
2901 et seq. ............................................................................... 
1, 6 

Livestock Mandatory Reporting Act of 1999, Pub. L. 

No. 106-78, 113 Stat. 1188 (to be codified at 7 U.S.C. 
1635 et seq.) ............................................................................. 

7 
Mushroom Promotion, Research, and Consumer 

Information Act of 1990, 7 U.S.C. 6101 et seq. ................. 

1, 6 

7 U.S.C. 6101(b)(1) ............................................................ 5 

(I) 

II 

Statutes and regulations—Continued: 
Page 

7 U.S.C. 6101(b)(2) ............................................................ 
5 

7 U.S.C. 6104(g)(1)(A) ...................................................... 
2 

7 U.S.C. 6104(g)(1)(B) ...................................................... 
2 

7 U.S.C. 6104(g)(1)(C) ...................................................... 
2 

7 U.S.C. 6104(j) .................................................................. 
3 

7 U.S.C. 6105(a) ................................................................. 
2 

7 U.S.C. 6105(b)(1)(A) ...................................................... 
2 

7 U.S.C. 6105(b)(1)(B) ...................................................... 
2 

7 U.S.C. 6107(c)(1) ............................................................. 
3 

7 C.F.R.: 

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

6 

Pt. 1260 .................................................................................... 6 

REPLY BRIEF FOR THE PETITIONERS 

This case concerns the constitutionality of the assess- 
ments imposed on members of the mushroom industry, pur- 
suant to the Mushroom Promotion, Research, and Consumer 
Information Act of 1990 (Mushroom Act), 7 U.S.C. 6101 et 
seq., to fund a generic advertising program designed to sup- 
port that industry. The Sixth Circuit, distinguishing Glick- 
man v. Wileman Bros. & Elliott, 521 U.S. 457 (1997), held 
that the Mushroom Act and the Secretary of Agriculture’s 
implementing regulations violate the First Amendment to 
the extent they require the payment of such assessments. 
The Tenth Circuit, in contrast, has upheld under Wileman 
the assessments imposed under the virtually identical 
advertising program authorized by the Beef Promotion and 
Research Act of 1985 (Beef Act), 7 U.S.C. 2901 et seq. 

1. Respondent identifies no case in which this Court has 
denied the government’s request to review a decision of a 
federal court of appeals invalidating all, or any significant 
part, of an Act of Congress.1 That is precisely what the 
court of appeals did here, contrary to respondent’s claim (at 

23) that “no Act of Congress was invalidated below—only an 
administrative order.” The court of appeals could not have 
been clearer that it was invalidating the Mushroom Act to 
the extent that it provides for mandatory payments by 
members of the industry: 

1 We are aware of only one such case, FCC v. Action for Children’s 
Television (ACT), 503 U.S. 914 (1992) (No. 91-952), which concerned the 
regulation of “indecent” broadcasting. Because the court of appeals re- 
manded that case to the FCC for further proceedings, the case was in an 
interlocutory posture, and the respondents argued, inter alia, that the 
caes was not ripe for review. Br. of Respondents ACT et al. at 18-19. In 
addition, the respondents argued that, because the court of appeals panel 
included then-Judge Thomas, who had since been appointed to this Court, 
the case could produce an equally divided Court. Id. at 19 n.39. This case 
presents neither of those circumstances. 

(1) 

2 

[T]he effort by the Department 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. (Pet. App. 8a 
(emphasis added)). 

Nor is the Mushroom Act merely agnostic, as respondent 
suggests (at 21-23), as to whether payments to fund the ad- 
vertising program are to be mandatory or voluntary. Sev- 
eral provisions of the Act make clear that such payments are 
to be mandatory. 

First, the Mushroom Act states that any order establish- 
ing an advertising program “shall provide that each first 
handler of mushrooms for the domestic fresh market pro- 
duced in the United States shall collect * * * assessments 
from producers.” 7 U.S.C. 6104(g)(1)(A); see 7 U.S.C. 
6104(g)(1)(B) and (C) (similar provisions applicable to “each 
importer of mushrooms for the domestic fresh market” and 
“[a]ny person marketing mushrooms of that person’s own 
production directly to consumers”). In using the term “as- 
sessments” and the mandatory word “shall”—and by specify- 
ing that the assessments are to be remitted by “each” han- 
dler, “each” importer, and “any” direct marketer—Congress 
made it clear that payment was not a voluntary matter. 

Second, the Mushroom Act provides that any order estab- 
lishing an advertising program is to take effect only if ap- 
proved in a referendum of producers and importers. 
7 U.S.C. 6105(a); see also 7 U.S.C. 6105(b)(1)(A) and (B) (pro- 
viding for a second referendum after five years and addi- 
tional referenda if requested by producers and importers). 
If participation in the advertising program were voluntary, 
there would be little need for such referenda; those pro- 
ducers and importers who supported the program would 
participate, and those who opposed the program would not. 

3 

Third, the Mushroom Act provides that any order estab- 
lishing an advertising program “shall contain * * * provi- 
sions for the assessment of a penalty for each late payment 
of assessments.” 7 U.S.C. 6104(j). In addition, the Act pro- 
vides for enforcement of the order in district court, including 
the imposition of a monetary penalty against anyone “who 
fails or refuses to pay, collect, or remit any assessment or fee 
duly required of the person under such order.” 7 U.S.C. 
6107(c)(1). Such provisions would serve no purpose if pay- 
ment of assessments were purely voluntary. 

Thus, in holding that “[t]he portions of the Mushroom Act 
of 1990 which authorize such coerced payments for advertis- 
ing are * * * unconstitutional” (Pet. App. 8a), the court of 
appeals was invalidating the mechanism that Congress itself 
chose to assure adequate funding of the advertising pro- 
gram. The court was not, as respondent claims (at 23), 
merely invaliding “an administrative order.” 

2. As we explain in the certiorari petition (at 8-11), the 
court of appeals’ decision in this case is inconsistent with 
Wileman, which rejected a First Amendment challenge to 
generic advertising programs for California fruits that were 
financed by assessments on producers. The Court identified 
three characteristics that distinguish those programs— 
which enhance speech—from laws that have been held to 
“abridge” speech: they “impose no restraint on the freedom 
of any producer to communicate any message to any audi- 
ence,” they “do not compel any person to engage in any 
actual or symbolic speech,” and they “do not compel the pro- 
ducers to endorse or to finance any political or ideological 
views.” 521 U.S. at 469-470. The advertising program for 
mushrooms is indistinguishable, in all three respects, from 
the advertising programs in Wileman. 

Respondent nonetheless contends (at 8) that the Sixth 
Circuit’s holding “is compelled by” this Court’s decision in 
Wileman. Respondent bases that contention largely on the 
Court’s preliminary description in Wileman of the “statutory 

4 

context” in which the case arose, which noted that the mar- 
keting orders at issue “displaced many aspects of indepen- 
dent business activity,” such as by setting maturity and 
minimum size standards for the fruits. 521 U.S. at 463, 469. 
We explain in the petition (at 10-11) why we do not read the 
Court’s First Amendment holding to rest on that discussion 
of the California fruit industry. That discussion does not 
appear in the section of the Court’s opinion that addresses 
why the advertising programs are unlike laws that violate 
the First Amendment. See 521 U.S. at 469-474. It instead 
appears principally in the preceding section, which identifies 
what is, and is not, at issue in the case. See id. at 469.2 

Nowhere in Wileman did the Court state that its holding 
was limited to advertising programs included in marketing 
orders that extensively regulate an agricultural commodity. 
To the contrary, the Court noted that it had granted certio- 
rari in Wileman “to resolve the conflict” with United States 

v. Frame, 885 F.2d 1119 (3d Cir. 1989), cert. denied, 493 U.S. 
1094 (1990), which involved the advertising program author- 
ized by the Beef Act and implemented by an order of the 
Secretary that does not otherwise regulate the beef indus- 
try. 521 U.S. at 467. The Court was made aware of the dif- 
ferences in regulatory scope between the orders in Wileman 
and Frame. See Oral Arg. Tr. at 26, Wileman (government 
counsel explains that “[t]he beef program focuses almost ex- 
clusively on promotional programs and advertising”); 
Frame, 885 F.2d at 1122-1124. Yet, the Court did not even 
suggest that the advertising programs in both cases were 

2 It has been suggested that “the point” of the discussion of the regu- 
latory context in Wileman was that “the advertising tool merely seeks to 
accomplish the same goals as equally or more invasive tools, such as price, 
quantity, quality and labeling restrictions,” and thus that “no greater 
weight should be given to the fact that the advertising tool involves an 
activity that, in other contexts, is ‘commercial speech’ protected by the 
First Amendment.” 
Gerawan Farming, Inc. v. Veneman, 85 Cal. Rptr. 2d 

598, 605 (Ct. App.), review granted, 983 P.2d 728 (Cal. 1999). 

5 

not equally constitutional. Thus, respondent’s assertion (at 

8) that Wileman somehow “compelled” the invalidation of 
the advertising program for mushrooms is baseless. 
Respondent also contends (at 10) that a decision sustain- 
ing the mushroom advertising program would “go far be- 
yond any of this Court’s compelled speech precedents and 
permit the government to compel private parties to finance 
any commercial message of the government’s choosing.” In 
the first place, the Court has explained that advertising pro- 
grams of the sort at issue here and in Wileman “do not com- 
pel any person to engage in any actual or symbolic speech,” a 
“fact [that] distinguishes” such programs from the laws at 
issue in the Court’s “compelled speech” precedents. 521 U.S. 
at 469 & n.13. Moreover, while noting that its precedents 
also recognize “a First Amendment interest in not being 
compelled to contribute to an organization whose expressive 
activities conflict with one’s ‘freedom of belief,’ ” id. at 471, 
the Court explained that no such interest was implicated in 
Wileman 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,” id. at 
473. Those same characteristics are present here. The ad- 
vertising program is “unquestionably germane” to the pur- 
poses of the Mushroom Act—which include “strengthen[ing] 
the mushroom industry’s position in the marketplace” and 
“maintain[ing] and expand[ing] existing markets and uses 
for mushrooms,” 7 U.S.C. 6101(b)(1) and (2)—and, “in any 
event,” the assessments “are not used to fund ideological 
activities.” 521 U.S. at 473. A decision upholding the mush- 
room program thus would not, as respondent asserts (at 10), 
give the government free rein to “compel private parties to 
finance any commercial message.” 

3. Respondent next asserts (at 13) that our contention 
that the decision below creates a conflict that merits the 
Court’s resolution “is strained indeed, given that no other 

6 

federal or state court has ever even considered the constitu- 
tionality of [the mushroom] program.” We note as a thresh- 
old matter that respondent’s assertion is factually inaccu- 
rate. A federal district court in California (in an unpublished 
opinion appended to respondent’s own brief in the court of 
appeals) upheld the assessments under the Mushroom Act 
against the same challenges raised here. See Donald B. 
Mills, Inc. v. United States Dep’t of Agriculture, No. CV-F- 
97-5890 OWW SMS (E.D. Cal. Mar. 5, 1998), slip op. 8 (hold- 
ing that “[n]othing in Glickman [v. Wileman] dictates that a 
contrary outcome is mandated for a ‘stand-alone’ advertising 
program” such as the program for mushrooms). More fun- 
damentally, however, the conflict that (quite aside from the 
holding of an Act of Congress unconstitutional) warrants this 
Court’s intervention is not with Mills, but with Goetz v. 
Glickman, 149 F.3d 1131 (10th Cir. 1998), cert. denied, 525 
U.S. 1102 (1999). None of respondent’s attempts to deny the 
existence of that conflict is meritorious. 

First, respondent suggests (at 14) that no circuit conflict 
exists because Goetz involved the Beef Act while this case 
involves the Mushroom Act. As our petition explains (at 11), 
however, the two statutes are substantively identical; both 
are concerned almost exclusively with the establishment of 
programs to promote an agricultural commodity that are 
funded by assessments on producers or handlers. Compare 7 
U.S.C. 2901 et seq. with 7 U.S.C. 6101 et seq. The Secretary’s 
orders implementing those programs are also identical in all 
pertinent respects. Compare 7 C.F.R. Pt. 1260 (Beef Order) 
with 7 C.F.R. Pt. 1209 (Mushroom Order). Indeed, this 
Court recognized a circuit “conflict” in Wileman, 521 U.S. at 
467, where the Ninth Circuit invalidated, but the Third 
Circuit upheld, advertising programs established under stat- 
utes and orders less similar than those here. 

Second, respondent argues (at 14-15) that the First 
Amendment claim in Goetz “is distinguishable from and, 
indeed, is unrelated to” the First Amendment claim here. 

7 

Respondent is mistaken. The Tenth Circuit described the 
plaintiff ’s claim in Goetz as being that “the assessment 
violates his First Amendment right because he is compelled 
to support advertising which promotes beef consumption.” 
149 F.3d at 1138. Respondent’s claim here is likewise that 
the assessment violates its First Amendment rights because 
it is compelled to support advertising that promotes mush- 
rooms. C.A. App. 22 (Compl. ¶ 30). Moreover, as we note in 
the petition (at 11), the plaintiff in Goetz argued that his case 
was not controlled by Wileman because the Beef Act “is not 
an overall regulatory scheme like the [Agricultural Market- 
ing Agreement Act],” under which the orders at issue in 
Wileman were issued; the plaintiff also argued that “[u]nlike 
the fact situations to which the Wileman decision has been 
restricted, the beef industry is * * * a highly competitive 
industry.” Appellant’s Supp. Br. at 6, Goetz; see also id. at 7 
(contending that “limitations” in the Wileman opinion “re- 
strict it from applying” to the Beef Act).3 Thus, when the 
Tenth Circuit held that “under the Supreme Court’s decision 
in Wileman Bros., Goetz’ First Amendment claim is fruit- 
less,” 149 F.3d at 1139, that court was plainly rejecting his 
attempts to distinguish Wileman on the very grounds 
advanced by respondent here. 

Third, respondent contends (at 15) that this case and 
Goetz are distinguishable on the ground that “the market for 
beef is less stable and (in part for that reason) more heavily 
regulated than the market for mushrooms,” albeit under 
statutes other than the Beef Act. But the Tenth Circuit in 
Goetz did not even suggest, much less hold, that such con- 
siderations had any bearing on the constitutionality of the 
advertising program for beef.4 Nor did the Sixth Circuit 

3 In advance of the filing of the response to our certiorari petition in 
this case, we provided respondent’s counsel with copies of our briefs and 
the appellant’s supplemental (post-Wileman) brief in Goetz. 

4 In fact, the Livestock Mandatory Reporting Act of 1999, Pub. L. No. 
106-78, 113 Stat. 1188 (to be codified at 7 U.S.C. 1635 et seq.), one of the 

8 

give any indication in this case that any “stand-alone” adver- 
tising program would withstand constitutional scrutiny. 

In a footnote, respondent argues (at 21 n.5) that the gov- 
ernment itself must perceive a distinction between the 
advertising programs for mushrooms and beef, because the 
Department of Agriculture is continuing to collect assess- 
ments under the beef program in the Sixth Circuit notwith- 
standing the decision below. Respondent’s argument rests 
on the premise that the Department, in contrast, has ceased 
collecting assessments under the mushroom program in the 
Sixth Circuit. That is incorrect. As we informed respondent 
by letter dated October 13, 2000 (a copy of which we have 
lodged with the Clerk), USDA continues to collect assess- 
ments under both programs in the Sixth Circuit pending this 
Court’s review because, in light of our pending certiorari 
petition, the decision below is not final binding precedent in 
that circuit. 

4. Respondent concludes (at 23-25) with various other 
arguments as to why certiorari should not be granted. None 
of those arguments provides any persuasive reason to deny 
review, and thereby to allow the uncertainty created by the 
court of appeals’ decision to fester. 

First, respondent complains (at 23) that, since we have not 
identified any case currently challenging the constitutional- 
ity of federal generic advertising programs or any grower 
(other than respondent itself ) currently withholding assess- 
ments under the mushroom program based on the Sixth 
Circuit’s decision, we have “seriously overstate[d]” the sig- 
nificance of this case. As to the first point, while no cases 
presenting First Amendment challenges to federal advertis- 
ing programs are pending, several such cases have been 
concluded in the past two years. All of those cases upheld 

statutes on which respondent relies (at 17-18) to distinguish the regula- 
tory contexts applicable to beef and mushrooms, had not even been en- 
acted when the Tenth Circuit decided Goetz. 

9 

those programs against First Amendment challenges.5 It is 
not surprising that such cases tapered off after this Court’s 
decision in Wileman and the subsequent unanimity of appel- 
late decisions upholding advertising programs. The decision 
in this case, if allowed to stand, would destroy that unanim- 
ity, and thus invite a new round of litigation. 

As to the second point, we have been informed by the 
Department of Agriculture (and informed counsel for re- 
spondent) that several mushroom producers (in addition to 
respondent) are in arrears in their assessments under the 
mushroom program. Until USDA commences formal collec- 
tion proceedings against those producers (which cannot 
occur for several months), USDA has no mechanism for 
learning why they are withholding payments. Nor does the 
fact that relatively few producers have thus far withheld 
assessments detract from the significance of this case. In- 
deed, given that the government’s decisions to seek rehear- 
ing and then certiorari in this case have been widely pub- 
licized among mushroom producers, even those who share 
respondent’s views might prudently have chosen to continue 
paying assessments until this case is finally resolved. 

Second, respondent asserts (at 24) that this case would be 
“an inappropriate vehicle” to decide the constitutionality of 
assessments under the Mushroom Act, because there is no 
extensive record “regarding the nature of the mushroom 
industry or the efficacy of the Mushroom Council’s promo- 
tion program.” But a central teaching of Wileman is that 
inquiries into the efficacy of generic advertising programs, 
like other economic regulations, are properly left to Con- 
gress, the Secretary, and the producers themselves by 
majority vote. See, e.g., Wileman, 521 U.S. at 468, 476. 

5 See Cal-Almond Inc. v. United States Dep’t of Agriculture, 192 F.3d 
1272 (9th Cir. 1999), cert. denied, 120 S. Ct. 2215 (2000); Goetz, 149 F.3d at 
1138-1139; Gallo Cattle Co. v. United States Dep’t of Agriculture, 189 F.3d 
473 (9th Cir. 1999) (Table); Nature’s Dairy v. Glickman, 173 F.3d 429 (6th 
Cir. 1999) (Table). 

10 

Accordingly, if the Court concludes, consistent with our 
position, that the advertising program in this case should be 
analyzed in the same manner as those in Wileman, the Court 
would have no need to consult the sort of record described 
by respondent. Alternatively, if the Court were to conclude 
that a different analysis should be applied, the Court could 
remand the case for the compilation of whatever record 
might be necessary. But the absence of a more extensive 
factual record is no reason to deny review, since the court of 
appeals has entered a judgment invalidating an Act of 
Congress. Unless reviewed by this Court, that judgment 
will become final and binding. 

Finally, respondent asserts (at 24-25) that “[a] decision in 
this case is * * * unlikely to shed light on the consti- 
tutionality of many other programs involving products that 
are substantially regulated.” In the first place, even if one 
were to accept respondent’s assertion (at 24) that “the Mush- 
room Act presents the extreme example of a compelled pro- 
motion program,” a decision upholding that program would 
almost certainly resolve the constitutionality of other pro- 
grams that respondent would characterize as less “extreme.” 
Moreover, as our petition explains (at 13-14 & n.7), the ad- 
vertising program established under the Mushroom Act is 
virtually identical to programs established under a number 
of other statutes. Respondent, while asserting (at 25) that 
the advertising programs for beef and milk are distinguish- 
able because those products are more “substantially regu- 
lated,” does not even attempt to distinguish the programs 
that we identified for ten other agricultural products. 

* * * * * 

For the reasons stated above and in the petition for a writ 
of certiorari, the petition should be granted. 

11 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

NOVEMBER 2000