Thursday, March 23, 2000, 6:37:28 AM, you wrote a perfectly timely and
highly constructive post that provides ample basis for comments to be
sent to the USDA during the 90 Organic Rule comment period. DO be
aware however, that OFPA itself is ostensibly not in question, just
the rule. HOWEVER, the unconstitutionality of mandatory (and
monopolistic) USDA Organic Certification called for in OFPA itself,
obviates the need for an Organic Rule. In that sense, OFPA itself MUST
be changed - it must be revised, in order for the rule (as well of the
original purpose of OFPA) to proceed - to see the light of day.
An adequate Organic Rule should be made to apply to an OFPA which has
removed the requirement for mandatory USDA Organic Certification for
products sold as organic, with a specific review and appeals process
added for invoking those processes by interested parties on either
side of the buyer / seller (or grower) relationship.
This is what SHOULD have been done from the start, and is still what
will have to be done if the word organic is to remain imbued with the
meaning growers, sellers, buyers & consumers of organic food products
have given over time to the organic products that embody that
imperfect yet +/- comprehensible meaning.
Some folks this is too much trouble, too difficult. However, LIFE is
too much trouble, too difficult; but it's all we've got - so we'd
better get it done it right once and for all.
The alternative would be to kill it and leave things as they are.
Hablando se entiende la gente.
*********** REPLY SEPARATOR ***********
BA> On Wed, 22 Mar 2000 19:59:41 -0800, William Evans wrote:
>>Can a farmer just say what he uses /doesn't use on his farm?
>>There is stilll freedom of speech in this country.
BA> You have touched on the fascinating issue of commercial free speech.
BA> There are a number of interesting court cases that can help you
BA> understand that while government has *some* right to restrict speech
BA> (you can't yell 'FIRE' in a crowded concert hall without getting into
BA> trouble --- unless there really is a fire), it's chances of stopping
BA> the kind of legitimate speech you describe are relatively small.
BA> Here is a brief overview ...
BA> There are a number of private programs out there, providing
BA> certification for things like `organic,' `IPM,' `kosher,' and such. All
BA> these labels have to be treated in a consistent manner, in that if it
BA> would be inappropriate to a apply a restriction in the case of `kosher'
BA> programs, it would be considered equally unacceptable to apply a
BA> restriction of that nature in the case of `organic,' `IPM,' or similar
BA> The certification seals of several private programs are registered
BA> *trademarks*. The USDA would appear unable to demonstrate sufficiently
BA> *compelling interest* (important legal concept here) to justify
BA> preventing physical or corporate persons from using any legally
BA> registered trademark, nor from making *true* statements regarding
BA> requirements satisfied to earn the right to use it.
BA> The First Amendment right of commercial free speech has been described,
BA> defined, and elaborated in a number of court decisions over the last
BA> twenty years or so. To wit:
BA> The government may freely suppress commercial speech that is NOT
BA> ACCURATE [Central Hudson Gas & Electric Co. v. Public Service
BA> Commission, 447US 557, 563, 564 (1980)] as well as regulate DECEPTION
BA> in the form of trade names [Friedman v. Rogers, 440 US 1 (1979)].
BA> Accurate commercial speech is generally protected against government
BA> restriction unless the State can establish that there exists some
BA> SUBSTANTIAL INTEREST to be achieved by such restriction [Central
BA> Hudson, 557, 564,568-69]. One example of interest ruled "substantial"
BA> has been protection of an organization against deceptive promotional
BA> practices implying sponsorship and/or association [San Francisco Arts &
BA> Athletics, Inc. v. US Olympic Committee, 483US 522 (1987)]. An example
BA> of interest ruled "insubstantial" was the government's purported
BA> interest in protecting postal patrons against material deemed offensive
BA> but not obscene [Bolger v. Youngs Drug Products Corp., 463US 60 (1983).
BA> Restrictions on commercial free speech must provide direct and
BA> effective SUPPORT for the ASSERTED PURPOSE [Virginia State Board of
BA> Pharmacy v. Virginia Citizens Consumer Council, 425US 748 (1976) and
BA> Bates v. State Bar of Arizona, 433US 350 (1977)]. Furthermore, in
BA> Bolger, not only was the interest judged insubstantial, but the
BA> restraint was deemed to be indirect and/or ineffectual.
BA> The means of restriction must be NARROWLY TAILORED TO ACHIEVE THE
BA> DESIRED OBJECTIVE [Board of Trustees v. Fox, 492US 469,480 (1989)]. It
BA> is difficult to see how restricting the use of legally registered
BA> trademarks, as well as prohibiting a range of *true* statements about
BA> how a product was produced could possibly pass this test.
BA> Government has a clearly established right to regulate the form of
BA> commercial free speech in order to prevent deception. Similarly, it can
BA> require warnings and/or complete statements in order to prevent
BA> deception by means of partial truths [Bates, 383-84].
BA> Government may not regulate commercial speech on the basis of time,
BA> place, or manner of said commercial speech unless there exist AMPLE
BA> ALTERNATIVE CHANNELS to convey the same message, and the regulation
BA> does not limit the content of such commercial speech [Linmark
BA> Associates v. Township of Willingboro, 431US 85,93-94 (1977)].
BA> The US Supreme Court has furthermore entrenched the rights of
BA> commercial speech in two recent decisions. In Rubin v. Coors, the Court
BA> ruled 9-0 that government regulators did not have the right to prevent
BA> Coors from providing accurate information (in this case, alcohol
BA> content) on the principal display panel of its products. In LiquorMart
BA> 44 v. State of Rhode Island, the Court held 7-2 that the First
BA> Amendment right of ### commercial free speech took precedence over
BA> even another section of the Constitution ### interpreted as granting a
BA> State the right to restrict such speech in certain situations.
BA> It would consequently seem highly unlikely (in view of even this
BA> cursory overview of the pertinent decisions) that any attempted
BA> restriction (by the USDA or other agency) on use of trademarks or
BA> statements to convey true and accurate commercial information
BA> (including how you produce your food) would stand up to the inevitable
BA> court challenges.
BA> If you've read this far, you will by now also probably understand that
BA> any regulatory attempt to restrict *political* speech by controlling
BA> political advertising (the core of McCain--Feingold) is
BA> constitutionally doomed, unless the Court gets packed with people
BA> having absolutely zero respect for the Constitution as it was written.
BA> Bart Hall
BA> Lawrence, Kansas
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