Supreme Court rejects challenge to Got Milk campaign

WASHINGTON - Those ads showing famous people with milk mustaches asking "Got Milk?" survived a Supreme Court challenge today.

HIGH COURT COVERAGE 01/12/00 -Driver's license info sales barred -Convicts can't refuse law help -Police can stop those who run -Affirmative action suit allowed -Citizen can sue alleged polluters -Court weighs grandparents' rights 01/11/00 -Court examines rape suits -States win age-bias victory 01/10/00 -Limits on AIDS insurance -Microsoft stock ruling stands -"Got Milk?" survives challenge -Penn. sex law appeal rejected -HMO tobacco suits disallowed -Wal-Mart can't avoid payment

The justices, without comment, rejected an appeal in which some dairy farmers challenged the government's authority to force them to finance the generic ads aimed at boosting the entire industry.

Two years ago the nation's highest court upheld a government program requiring growers and shippers of California peaches, plums and nectarines to help pay for a no-brand advertising campaign for those fruits.

That 5-4 ruling said being forced to pay for generic ads does not amount to unconstitutional "forced speech." Many experts said at the time the decision's rationale would extend to other generic-ad campaigns as well, such as those for dairy products, pork and eggs.

A federal appeals court last March relied heavily on the 1997 ruling when it threw out the dairy farmers' challenge to the program that, since 1984, has required them to subsidize generic ads. Dairy farmers and other milk producers are assessed about $250 million a year for the popular ads.

The challenge to that mandatory assessment had come in a 1996 lawsuit that alleged violations of speech and associational rights.

"Silence is as much speech as speech itself," lawyers for the dairy farmers said.

The dairy farmers say they are being forced to spend about 1 percent of their gross, an amount that can exceed their net income. They called the assessment "a tax rate that would rankle almost anyone."

The appeal acted on today sought to draw a distinction between the government program for the fruit industry and the dairy-industry program. It said the marketing order at issue in the 1997 case comprehensively regulated the affected commodities, but that the dairy industry marketing order issued by the Department of Agriculture "deals only with promotion, research and nutrition education programs."

Justice Department lawyers urged the court to reject the appeal, calling the distinction it raised "factually and legally untenable."

The case is Nature's Dairy vs. Glickman, 99-439.