Everything you need to know about the HSUS lawsuit

Court action sets a precedent that a single farmer can stop the operations of a checkoff program.

Cheryl Day, Former Editor

March 9, 2016

5 Min Read
Everything you need to know about the HSUS lawsuit

Pork producers are calling out USDA for settling with activist group over contract dispute, noting that the move does not have industry support, despite the ag agency's claims.

Justifiably, the issue has left many people asking questions.  We answer 10 of them:

Why did HSUS originally file a lawsuit?

In 2012, the Humane Society of the United States filed a lawsuit against the USDA and Agriculture Secretary Tom Vilsack over approval of the National Pork Board’s purchase of four elements related to the “Pork, the Other White Meat” trademark from the National Pork Producers Council. One small Iowa pork producer and the Iowa Citizens for Community Improvement joined the lawsuit. The U.S. District Court dismissed the lawsuit in 2013.

Who approved the original contract?

In 2005, the NPB approached the NPPC about purchasing those trademarks, which lead to a lengthy appraisal and negotiation. The Pork Act Delegate approved the final contract in a special session in July 2005.

John Johnson, NPB chief operation officer, says in 2006 the contract received the proper approval by the USDA. The contract to purchase the trademarks for $3 million a year for 20 years was signed by the only two parties involved – NPPC and NPB. Every year since 2006, the USDA has approved the annual payment along with the Pork Checkoff budget.

I thought the lawsuit was dismissed by the courts, why is the HSUS lawsuit still active?

In 2015, the plaintiffs filed an appeal with the Appellate Court in Washington, D.C. A federal judge reinstated the lawsuit and sent it back to the lower courts, ordering an investigation into the transaction. After Oct. 28, 2015, the USDA entered into settlement talks with HSUS. On Dec. 11, USDA and HSUS informed the Court that they were in an active settling negotiation. On 4:30 p.m. on Dec. 23, the Courts put the case on hold until May 2016.

So, why is the USDA settling?

That remains the big question. In the past, the U.S. Department of Justice on behalf of the USDA has exercised every legal measure to fight the lawsuit. However, based on filings from the USDA it is clear the agency is settling with HSUS.

At a legislative hearing, U.S. Rep. David Rouzer (NC) questioned USDA Secretary of Agriculture Tom Vilsack about the decision to settle with the HSUS. Vilsack’s response was “it was a decision made in concert with the industry. The industry has been involved in the discussion.” He also further explains that the “Pork, the Other White Meat” trademark is no longer being used.

What is the USDA’s next step?

The court ordered a review of the sale of “Pork, the Other White Meat” trademarks and the values of those elements. As a result, the USDA directed the NPB to spend checkoff dollars on a trademark valuation. The review is currently going on and expected to be completed by May. NPPC and NPB are fully cooperating with USDA, submitting information as requested by the USDA.

Is the ‘Other White Meat’ trademark dead?

Neil Dierks, NPPC chief executive officer, confirmed “Pork, the Other White Meat” slogan and trademark stands as the heritage brand. Even though the NPB has evolved the marketing effort with consumer trends, the “Other White Meat” brand is the fifth most memorable promotional tagline in the history of contemporary advertising and still an active brand.

And why is the pork industry so angry?

The answer to the questions can easily be found in the hearing testimony of Secretary Vilsack. The pork industry has never been consulted and actually was told by the DOJ that the NPPC and NPB cannot participate in the negotiations. The only two parties actually involved in the legal binding contract are not involved in the discussion.

Still, the real concern is the fact that the USDA would settle with an activist group, hindering the NPB the freedom to use their judgment to enter into contracts that are appropriate and necessary to promote pork without interference by a third party. In two separate annual meetings, voting delegates of the NPPC and NPB, presented a resolution and advisement, petitioning the USDA secretary to “mount a strong and vigorous defense.” In a historic move, the 145 Pork Checkoff delegates — appointed by the USDA — not only unanimously approved the advisement but also unanimously co-sponsored the petition. NPPC delegates also wholeheartedly approved the synchronized floor resolution brought to the voting body by the Illinois Pork Producers during the annual business meeting.

Does the petition hold weight?

The petition serves as a unified voice recommending the USDA to fight and not settle with HSUS. Unfortunately, the USDA can simply continue the settlement discussion.

What is NPPC’s position?

The NPPC is not in favor of the USDA settling with the HSUS. Last fall, the NPPC did file to intervene and asked to be part of the negotiation. The DOJ informed the NPPC that they and the NPB (two parties of the contract) cannot participate in the settlement discussion. The NPPC has refiled to intervene and plans to exercise every legal avenue to fight the settlement.

Dierks asks pork producers to contact his or her lawmakers to continue questioning USDA in order to find the answer to “who in the industry” requested the agency to settle.

Can a single producer dictate the direction of the checkoff program?

Micheal Formica, NPPC assistant vice president of domestic policy and counsel, says there are proper ways for that producer to voice concerns over the checkoff program, including participation in the NPB annual meeting. He adds, the recent actions of the USDA illustrate that now a single producer, disagreeing with the governing board, can shut down a checkoff program. “It now just takes one single person and they can bring the whole checkoff system down. This really calls into question all the checkoff organizations,” he adds.

About the Author(s)

Cheryl Day

Former Editor, National Hog Farmer

Cheryl Day is a former editor of National Hog Farmer.

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