Justice Petitions for Mushroom Order Rehearing

January 28, 2000

The Justice Department has asked a federal appeals court to rehear a case involving the constitutionality of the mushroom promotion, research and information order. A circuit court ruled in November that payments for advertising violate the First Amendment, according to USDA’s Agricultural Marketing Service.

Justice filed the petition in the U.S. Sixth Circuit Court of Appeals. The appeals court had reversed a July 1998 decision by the U.S. District Court in Jackson, TN, that followed a June 1997 Supreme Court ruling on the constitutionality of compelling funding of generic advertising under two federal marketing orders for California tree fruit.

In that case, the Supreme Court ruled that mandatory assessments for generic advertising did not violate the First Amendment but were "a species of economic regulation that should enjoy the same strong presumption of validity that we accord to other policy judgements made by Congress."

The appeals court, however, ruled that because mushrooms are unregulated, "compelled commercial speech is not a price the members must pay...to further their self-interest."

In the petition for a rehearing, the government argues that the panel’s legal ruling is erroneous and that the decision, if left in place, "will call into question many similar acts of Congress. The panel erroneously looked at the amount of regulation actually in force in the mushroom industry, and this decision reopens an issue that the Supreme Court intended to resolve" in the California tree fruit case.

The panel decision has not taken effect yet and will not become effective while the rehearing petition is under consideration, says AMS. The program will continue during the interim.