Debra Goldman's Consumer Republic

The right not to advertise might be worth upholdingThe muzzling of the Mushroom Council might be bad news for ad agencies but a boon to commercial-speech rights.I know that beef is what's for dinner. I am aware that the egg is both incredible and edible. I have even beheld the power of cheese. But I confess I have never seen an ad for mushrooms. Chances are, neither have you, given the Mushroom Council's $1 million ad budget. Now, thanks to the U.S. Supreme Court, we may never get the chance to have our mushroom awareness raised. Rejecting the Justice Department's argument that generic ads for the tasty little fungus were in the interest of all mushroom producers, the court last week ruled that forcing producers to pay for mandatory ads violates the First Amendment protection against compelled speech. The Supreme Court has been here before. In 1997, it ruled that mandatory payments from fruit growers to fund marketing did not run afoul of the First Amendment due to the high level of regulation in what is a collectively run business. Mushrooms, the court held, are a different kettle of fish, so to speak. Unlike peaches or plums, the mushroom game is far less regulated or cooperative. Thus, this fungus that pops out of the dung, supported by a measly ad budget, has earned a ruling that threatens ad programs worth hundreds of millions of dollars. Whither such classics as the "Got milk?"/mustache work, in which two successful campaigns-from different agencies, with different strategies, for different clients-melded into one? It's something that could only happen in the now-threatened world of commodity advertising. Ad agencies' loss will surely be lawyers' gain. There are now dozens, if not hundreds, of these programs on both the state and national level, and not one commands universal support among its members. Small producers say generic ads disproportionately benefit the huge agribusinesses. In the mushroom case, litigant United Foods argued the opposite: that its assessment subsidized benefits for smaller competitors and thwarted promotion of its own brand. Given the famous industry truism that a client cannot know which half of its ad budget is being wasted, one wonders how either side can be so sure. Is there any way to know who is benefiting most and how much? At least the opponents agree on one thing: These campaigns are doing somebody some good. It just always happens to be the other guy. Although the opponents of cooperative commodity advertising claim harm to their business, their relentlessness indicates they are not simply motivated by the bottom line. The mushroom promotion cost United Foods $8,000 a month, probably a fraction of its legal bills over five years of arguing in court for its right not to say that mushrooms are delicious in soups, on steak and in omelets. Now every commodity producer with a libertarian bent and no faith in generic advertising is emboldened to take its case to court and see whether its industry passes the "sufficiently regulated" test. In the near term, the muzzling of the Mushroom Council may be bad news for agencies that flog Michigan cherries or Idaho potatoes. Yet in an odd twist, upholding the right not to advertise could be the greatest thing to happen to commercial-speech rights in years. That seems to be the case in California. Plum grower Gerawan Farming, after being rebuffed by the U.S. Supreme Court in the 1997 decision, took its case to the state Supreme Court of California (you see what I mean about relentless). There it argued that the mandatory assessment, although not in violation of the First Amendment, did nevertheless violate the state constitution, which declares "every person may freely speak, write and publish his or her sentiment on all subjects." Which is to say that every person is free not to speak on "all subjects"-including the refreshing sweetness of California plums. The California Supremes agreed that it might violate the state constitution and sent the case back to the lower court to determine the proper legal standard. Whether Gerawan will prevail is uncertain. But what caught the attention of commercial-speech advocates was that advertising requirements and regulations could survive a First Amendment challenge and still be illegal in an individual state. Some legal experts say this ruling puts all but misleading or false commercial speech in California on the same footing as individual speech. There are undoubtedly plenty of consumers out there, inundated with ads, who wish advertisers would exercise their right not to speak more often. Fat chance. In fact, the affirmation of the right not to speak could pave the way for much broader rights for commercial speech in general.

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Debra Goldman's Consumer Republic

Debra Goldman

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Debra Goldman