"Got milk?" - a violation of freedom of speech?

Getting milked?

Institute for Justice Challenges Compelled Speech in "got milk?" Ad Campaign

You’ve probably seen the ads on TV or in magazines. Usually they feature someone with a mouth full of cookies or chocolate cake who suddenly realizes they are out of milk, followed by the catchy slogan “got milk?” What you may not know is that dairy farmers are forced to pay for these and other dairy ads under a federal program called the Dairy Promotion Program.

The program is one of a multitude of state and federal programs that allow industry boards, usually composed of a few producers appointed by the government, to create generic ad campaigns designed to boost demand for their products. Programs exist for products as diverse as beef and pork, honey, watermelons, fresh cut flowers, peanuts, popcorn, pecans, as well as mohair and alligator skins, to name just a few. The catch is that all producers are required to pay for these ads whether they want to or not, and, of course, the costs are passed along to consumers. Advertising, it seems, is increasingly something that governments feel is too important to be left to individual producers and the free market.

To help put a stop to this coercive trend, IJ recently took over the appeal of a case challenging the Dairy Promotion Program under the First Amendment. Our clients, Joseph and Brenda Cochran, own and operate a small commercial dairy farm in Tioga County, Penn. The Cochrans are “traditional” dairy farmers, which essentially means that they run their farms in a less intensive manner than larger-scale, more commercialized dairy farms. Traditional dairy farmers allow their cows more room to graze and to move around; they pay more attention to the environment and they don’t use bovine growth hormone. In the Cochrans’ view, traditional dairy farming results in healthier cows, a cleaner environment and a superior product. Judging by the booming market for organic products, many people agree with this approach to farming.

The Cochrans thus have every reason to distinguish their milk from that of larger- scale producers. The Dairy Act, however, compels them to do just the opposite. It requires them to fund ads through the Dairy Promotion Program whose message is that all milk is the same, regardless of who produces it or what methods they use. The Cochrans are thus forced to support a message and farming practices they have specifically chosen to reject.

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