(Publisher’s note:Gary Baise is a nationally respected environmental attorney living in Virginia and he owns a family farm in Illinois. Virginia is a major pork producing state and this article shows the pending impact on this industry from the lawsuit described below). If you’re an activist group bent on beating your opponent, what’s your best strategy? How about taking them to court to try to quiet their opposition and relieve them of their funding sources?On Sept. 24 the Humane Society of the United States (HSUS) and a pork producer in Adair County, Iowa, sued USDA Secretary Vilsack in U.S. District Court in Washington, D.C. Although not named in the complaint, the real defendants are the National Pork Board and the National Pork Producers Council.HSUS’s lawsuit is an attempt to void a straight-forward contract between Pork Board and the Pork Producers, thereby depriving them of funds and silencing their right to free speech! “Pork: The Other White Meat” slogan is in the midst of a legal battle. HSUS complains that the Pork Producers spend significant funds to fight HSUS policy and legislative reforms. HSUS attacks many practices in the pork industry and claims, in their complaint, that it spends significant staff time and resources to work with various pork companies to eliminate the use of gestation crates. HSUS is upset that the Pork Producers have “…issued public statements and commentary opposing these corporate decisions to eliminate gestation crates and urging others against working with HSUS…” HSUS also takes issue with the Pork Producers’ opposition to a new federal bill involving egg products which has the support of some egg producers working with HSUS. It claims it has “…had to divert and devote resources to counter NPPC’s activities to obstruct its work.” HSUS clearly is unhappy with the effectiveness of the Pork Producers and is attempting to use a court case to attempt to silence them from making public comments regarding HSUS tactics. HSUS appears to be engaged in what is called a “SLAPP suit, or a strategic lawsuit against public participation. SLAPP suits are generally brought as civil suits with the effect of attempting to silence critics. The goal in these cases typically is to instill fear or intimidate a defendant, or simply exhaust a defendant’s finances. While that is not likely to occur in this case because the suit is against USDA , nonetheless, the real targets are the two pork organizations. HSUS novel legal theory is their latest attempt to stop the flow of funds being properly and legally transferred from the Pork Board to the Pork Producers related to the sale of the Pork Producers’ rights to the well-known campaign, “Pork, The Other White Meat” The Pork Board is authorized by federal statute and is commonly known as a “checkoff” entity. The checkoff is a tax and the program overseen by USDA. As a result, the Pork Board is prohibited from using its funds for lobbying; instead, their monies must be used for “…an effective and coordinated program of promotion research and consumer information.” The Pork Board’s expenditures are closely supervised by USDA and their projects, plans, budgets, and contracts must be approved by federal officials. HSUS objects to the Pork Board’s purchase of a license from the Pork Producers to use and market the phrase: “Pork, The Other White Meat.” The lawsuit argues that Secretary Vilsack is permitting the Pork Board to make an illegal purchase, and that the ongoing annual payments of pork checkoff dollars are improperly being used for lobbying. A key component of the HSUS lawsuit is its claim that the pork order requires any trademark that is developed with checkoff funds to become property of the United States government. HSUS claims that the Pork Producers are being paid for a trademark which is owned by USDA. HSUS also makes numerous claims regarding insider dealing and questions the value of the trademark of “Pork, The Other White Meat.” In a 2003 brief to the U.S. Supreme Court, the Michigan Pork Producers, noted that “Pork: The Other White Meat”…”is not government property” and that “it was developed with private funding prior to the enactment, and is licensed to the Pork Board on an ongoing and exclusive basis…” According to the HSUS complaint, the Pork Board paid a purchase price of $34,597,000 in 2006. It was agreed the Pork Board would pay the Pork Producers approximately $3 million annually for 20 years at 6.75% interest or approximately $60 million according to HSUS. The deal was approved by USDA. HSUS claims that since 2006, checkoff funds have been flowing to the Pork Producers for purchase of the trademark. HSUS also objects to the Pork Board’s efforts to secure new monies to create a new brand for pork based upon its conclusion of the “Other White Meat” ad campaign. HSUS asks the District Court to terminate the $3 million annual payment and for USDA to be prohibited from approving the Pork Board’s use of federal funds to pay for its contractual obligations. Pork Producers are an effective voice for agriculture. Will they be silenced by HSUS’s lawsuit? Stay tuned! |
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