An Urban's Rural View

Got Facts? Where's The Disclosure? The Incredible Edible Exemption

Urban C Lehner
By  Urban C Lehner , Editor Emeritus
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A journalist advocating for more public disclosure is like a construction contractor testifying in favor of increased highway spending. Try as he might to cloak his brief in the public good, he can't hide his self-interest. Just as public roadwork keeps contractors in contracts, disclosure of information keeps journalists in stories.

But does the private self-interest discredit the public-interest argument? Hardly. The public benefits from better roads and more disclosure, even if these things happen to be good for contractors and journalists.

That's why this ink-stained wretch offers no apologies for preferring sunshine in politics and government. Without question, for example, Donald should release his tax returns and Hillary the texts of her Goldman Sachs speeches.

To cite another instance in the news: The Freedom of Information Act should continue to apply to farm checkoff programs. Unfortunately, a House panel has just used an ag-appropriations bill to urge (but thankfully not order) USDA to give the programs an FOIA exemption.

The ostensible reason some farm groups are pushing this change is that checkoff boards are not part of the government and do not receive federal funds. This assertion is at best a half-truth.

While checkoff boards are not federal agencies, they are created by Congress and overseen by USDA. And while they do not receive federal funds, it's the government's backing that enables them to collect money from producers.

In a 2005 case involving the beef checkoff, the Supreme Court rejected a challenge from ranchers who didn't want to pay the assessment. They said being forced to subsidize promotional messages with which they disagreed (because the messages promoted generic beef, not particular types of beef) violated their First Amendment rights.

The court replied that citizens have no First Amendment right not to fund "government speech" -- and checkoff messages are government speech. Writing for the court, the late Justice Antonin Scalia declared, "The message of the (beef) promotional campaigns is effectively controlled by the Federal Government itself (…)."

Checkoff boards liked the decision. They like the governmental aura when it enables mandatory fee collections. They don't like it when it allows embarrassing information about their operations to come to light. That's the real reason 14 commodity organizations (not the checkoff boards themselves, which aren't allowed to lobby) sought the exemption.

Last September, to cite but the most recent example of embarrassing information, the Associated Press reported that the American Egg Board's CEO had asked a consultant to ask Whole Foods not to sell Just Mayo, an eggless mayonnaise (…). The report led to a USDA investigation and a USDA declaration that it does not approve of "efforts to limit competing products in commerce" (…)." The egg board CEO stepped down.

How did the AP learn about the CEO's email to the consultant? From documents obtained under the Freedom of Information Act.

By the way, Whole Foods ignored the egg board's request. After some wrangling that did not involve the egg board, the FDA allowed the startup company Hampton Creek to continue to sell its product under the name Just Mayo, even though mayonnaise is defined as including eggs. The FDA did, however, require changes in Just Mayo's label, like adding the words "spread and dressing (…)."

In a way, though, all this is beside the point. Whatever happens to eggless mayonnaise, the AP report clearly served the public interest. The public has a right -- indeed, a need -- to know if checkoff boards are straying from the purposes for which they were created.

Checkoff boards may not be agencies of the government, but USDA is. Unless Congress goes beyond urging an exemption and actually legislates one, USDA should continue to honor legitimate FOIA requests for information about checkoff-board activities.

Urban Lehner



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5/16/2016 | 5:12 PM CDT
Fully agree. And ag. needs to learn that the customer pays our biils. We need to be their friend.