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Egg Board Enjoined Against Prop 2 Ads

LOS ANGELES (CN) - A Golden State egg fight has been stopped for now after a federal judge barred a federally funded industry promotion board from campaigning against California's Proposition 2, a ballot measure intended to prevent cruelty to farm animals.

A group calling itself Californians for Humane Farms (CHF) launched a ballot initiative designed called Proposition 2, which is entitled the "Prevention of Farm Animal Cruelty Act."

The ballot initiative, set to be decided in November's election, would prohibit the tethering or confinement of egg-laying hens in such a manner as to prevent the hens from lying down, standing up, fully extending their limbs or turning around freely.

Approximately 4,000 volunteers collected 800,000 signatures that put Prop 2 on the ballot. As of June 30 the organization had spent about $839,000 on its "Yes on Prop 2" campaign, and it had received around $4.4 million in donations.

The American Egg Board was created in 1974 by the Egg Research and Consumer Information Act (ERCIA). The Secretary of Agriculture is responsible for approving the Egg Board's annual budget, and controls the activities and expenditures of the Egg Board.

The Egg Board is one of 19 national commodity research and promotion programs. Congress created these boards to promote beef, lamb, pork, dairy, peanuts, avocados, popcorn, mangos, and honey, among other agricultural products. The purpose of these boards is to expand the markets for generic commodities. For example, the popular "Got Milk?" and "Beef, It's What's for Dinner" campaigns are the products of such commodity programs.

The Egg Board is funded by a mandatory assessment on egg producers with more than 75,000 egg-laying hens; funds collected through such assessments are known as federal "check-off" funds. When it created the Egg Board, Congress specifically prohibited the use of check-off funds for political purposes.

Plaintiffs sued Secretary of Agriculture Ed Schafer over the Egg Board's ad campaigns promoting the advantages of buying locally-grown eggs. According to plaintiff the campaign is really a thinly-disguised opposition to Prop 2, in violation of the Congressional ban on politicking with check-off funds.

Judge Marilyn Patel of the Northern District granted plaintiff's motion for an injunction barring the Egg Board's ad campaign pending resolution on the merits of the suit.

"CHF alleges that the Egg Board's California advertising campaign is designed to influence the election by supporting the 'No on Prop 2' ballot committee's efforts. The Secretary counters that the advertisements are unrelated to Prop 2, because they do not discuss the confinement or treatment of any animal or the ballot initiative itself and do not advocate any political position.

"The Secretary argues that the ads are generic and educational, and likens the ads to similar commodity promotion campaigns such as 'The Incredible, Edible Egg.'

"The central issue at this stage is whether the characterization of the Egg Board advertisements as unrelated to Prop 2 is supportable. The Egg Board, a national body, chose to allocate $3 million of a total 2008 special projects budget of approximately $3.7 million to a 'consumer animal welfare education campaign' in California just as ballot initiative proponents were gathering hundreds of thousands of signatures to place their initiative on the ballot.

"The Secretary asserts that this action had nothing to do with Prop 2, but he offers no alternative explanation or interpretation of the timing of the campaign. Moreover, the approved budget line item bore the title 'consumer animal welfare education campaign' but the advertisements ultimately produced with this money do not discuss the confinement or treatment of any animal.

"How did money initially earmarked for messages about animal welfare end up funding advertisements aimed at the apparently unrelated virtues of local eggs? Only one theory has been suggested to explain this odd shift.

"The challenged Egg Board campaign, funded by federal check-off funds, aims to remind viewers that 'local eggs are fresh and affordable' and 'if you want fresh eggs, you want them locally grown.' These Egg Board advertisements would run during the same time period that the 'No on Prop 2' coalition's materials argue that Prop 2 'eliminates fresh, safe, and local eggs.'

"The Egg Board campaign plainly works hand-in-glove with the 'No on Prop 2' campaign by convincing voters of the value of local and fresh eggs, the very things that Prop 2 opponents claim the ballot initiative will endanger.

"A conclusion that the Egg Board campaign does not have the purpose of influencing the outcome of the November election would require the court to accept as merely bizarre coincidences an unlikely series of events, namely: the decision to undertake a special $3 million campaign regarding animal welfare in California only, just as the efforts in support of the California ballot initiative were getting under way; the unexplained shift from a campaign about animal welfare to one about fresh and local eggs; the equally unexplained choice to spend money to promote specific desirable aspects of a commodity rather than the commodity itself; and finally, the unlikely dovetailing of the Egg Board's message and even specific buzzwords with those of Prop 2's organized opposition.

"To accept these as mere coincidences would stretch the limits of credulity."

Plaintiff is represented by Jonathan Russell Lovvorn at The Humane Society out of DC. Defendant is represented by Julie Arbuckle from the US Department of Justice.

By Scott Clines

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