Lore has it that mushrooms are aphrodisiacs, but lately they've been stirring more spleen than lust. Growers of the tasty fungi have been fighting each other in court over whether the government can force companies to join collective advertising efforts. In late November, the Supreme Court agreed to hear the case, and oral arguments likely will be heard in the spring.
The skirmish began in 1996, when one of the country's largest mushroom producers, United Foods, refused to pay its $8,000 monthly tab from the Department of Agriculture for generic, industry-wide advertisements. Among other complaints, the company argued that the requirement violated the First Amendment by forcing speech and thwarted its efforts to differentiate its mushrooms from those of its rivals.
The Justice Department, backed by many mushroom purveyors, took United Foods to court. Although the government won the initial trial, an appeals court judge reversed the decision, agreeing with United Foods that compulsory advertising payments were unconstitutional—at least in agricultural industries that are not heavily regulated, such as mushrooms.
The Department of Agriculture manages mandatory advertising programs for many such commodities, including honey, milk, and beef. The Supreme Court's decision could affect all of these programs. The court several years ago supported the government's right to require advertising fees in the heavily regulated California peach, plum, and nectarine industries. The Supremes' decision to revisit the issue suggests that they may wish to clarify their original ruling.
Together, mushroom merchants pay about $1.5 million a year to advertise their product. One industry insider who supports collective advertising—because, he says, "it works"—gets philosophical when asked about United Foods' position. "Some people just want to control their own destinies," he says incredulously.