MEMORANDUM DECISION GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc. 289) AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (Docs. 311 & 312)

Plaintiffs Delano Farms Company, Susan Neill Company, and Lucas Bros. Partnership (hereinafter referred to as Plaintiffs) have filed a motion for partial summary judgment and/or summary adjudication of issues: (1) regarding the “government speech” defense; (2) whether Glickman v. Wileman Brothers & Elliott, Inc. or United Foods, Inc. v. United States applies; and (3) whether Central Hudson intermediate “scrutiny is not applicable.” Defendant California Table Grape Commission (hereinafter referred to as the Commission) has filed a cross— motion for summary judgment on the grounds that (1) requiring Plaintiffs to fund the government speech of the Commission does not implicate the First Amendment; (2) the Ketchum Act is constitutional under Abood’s “germaneness” test; (3) the Ketchum Act is constitutional under intermediate scrutiny; and (4) Plaintiffs First Amendment rights are not implicated by compelled funding of most of the Commission’s activities.

A. PROCEDURAL BACKGROUND.

Plaintiffs commenced this action in the fall of 1996 by bringing two separate complaints against the Commission, alleging, inter alia, that the Commission’s regulation and the statute establishing the Commission — the Ketchum Act, California Food & Agrie. Code §§ 65500 et seq. (the Act) — violate Plaintiffs’ rights under the First and Fourteenth Amendments to the United States Constitution and their civil rights under 42 U.S.C. § 1983 . Plaintiffs initially sought preliminary injunctive relief to permit them to pay the disputed assessments into escrow, and in November 1996 and March 1997, the Court issued two preliminary injunctions granting that relief.

In June 1997, the United States Supreme Court decided Glickman v. Wile-man Brothers & Elliott, Inc., 521 U.S. 457 , 117 S.Ct. 2130 , 138 L.Ed.2d 585 (1997), reversing the Court of Appeal’s decision that reversed the trial court’s grant of summary judgment for defendant against the Plaintiff growers who were challenging a generic advertising program for tree fruit under the Agricultural Marketing Agreement Act (AMAA) on First Amendment grounds. The Supreme Court held that because the generic advertising program was germane to a broader regulatory scheme and did not involve the funding of ideological activities, id. at 473 , 117 S.Ct. 2130 , it should be reviewed “under the standard appropriate for the review of economic regulation” rather than “under a heightened standard appropriate for the review of First Amendment issues,” id. at 469 , 117 S.Ct. 2130 .

In light of Glickman , the Commission sought dismissal of Plaintiffs’ complaints under Rule 12(b)(6), Federal Rules of Civil Procedure. In September 1997, Plaintiffs’ First Amendment claim was dismissed to the extent that it alleged that the Commission’s program as a whole, as opposed to particular acts in administering the program, violated Plaintiffs’ rights. (Doc. 96). The preliminary injunctions were modified to require Plaintiffs pay 98% of the disputed assessments to the Commission and to pay only 2% into escrow.

In 1999, the Court of Appeals for the Sixth Circuit decided United Foods, Inc. v. United States, 197 F.3d 221 (6th Cir.1999), reversing a grant of summary judgment for the United States. The Sixth Circuit distinguished Glickman and held that a generic mushroom advertising program was subject to First Amendment scrutiny. Id. at 224-225.

In light of the Sixth Circuit’s decision in United Foods, and contemporaneous Ninth Circuit authority, Plaintiffs moved for reconsideration of the dismissal order. In June 2000, the Court denied Plaintiffs’ motion for reconsideration, relying on the Ninth Circuit’s recent decisions in Gallo Cattle Co. v. California Milk Advisory Board, 185 F.3d 969 (9th Cir.1999), and Cal Almond Inc. v. U.S. Department of Agriculture, 192 F.3d 1272 (9th Cir.1999), cert. denied, 530 U.S. 1213 , 120 S.Ct. 2215 , 147 L.Ed.2d 248 (2000), distinguishing the Commission’s table grape program from the mushroom program at issue in United Foods. (Doc. 125). On August 14, 2000, the parties stipulated to dismiss all remaining causes of action with prejudice except Plaintiffs’ cause of action under the First and Fourteenth Amendments and 42 U.S.C. § 1983 , which the parties and the Court agreed could proceed to appeal. Plaintiffs then appealed to the Ninth Circuit.

After briefing in the Ninth Circuit but before any oral arguments or decision, the Supreme Court affirmed the Sixth Circuit’s decision in United Foods. United States v. United Foods, Inc., 533 U.S. 405 , 121 S.Ct. 2334 , 150 L.Ed.2d 438 (2001). The Supreme Court held that the challenged mushroom advertising program was distinguishable from the tree fruit advertising program in Glickman .

On January 27, 2003, the Ninth Circuit reversed the dismissal of Plaintiffs’ claims in this case. Delano Farms Co. v. California Table Grape Commission, 318 F.3d 895 (9th Cir.2003).

Thereafter, the Commission amended its Answer and Plaintiffs filed a motion for judgment on the pleadings. By Order filed on December 11, 2003, Plaintiffs’ motion for judgment on the pleadings was denied. (Doc. 260).

The Scheduling Conference Order summarizes the parties’ factual and legal contentions. Only the First Cause of Action remains. It alleges that the Ketchum Act violates Plaintiffs’ free speech and association rights under the First and Fourteenth Amendments and Section 1983. Plaintiffs seek declaratory and injunctive relief and a refund of their assessments. They further contend that the Ninth Circuit’s decision in this case is dispositive and that each of the Commission’s affirmative defenses lack legal and factual merit. The Commission contends that it has not violated Plaintiffs’ constitutional rights; that the advertisements at issue are government speech and therefore not subject to First Amendment restrictions; or that the program is part of a comprehensive regulatory scheme and therefore exempt from First Amendment scrutiny; or, to the extent that its program is or implicates speech, the program passes scrutiny under Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 , 100 S.Ct. 2343 , 65 L.Ed.2d 341 (1980) and/or Abood v. Detroit Board of Education, 431 U.S. 209 , 97 S.Ct. 1782 , 52 L.Ed.2d 261 (1977). The Commission further maintains that the Ketchum Act is severable, and that if any section, clause, or part of the Act, or any part of the Commission’s activities, is held unconstitutional, such holding does not affect the remaining portions of the Act or any part of the Commission’s activities. The Commission raises a number of affirmative defenses to defeat Plaintiffs’ claims, in whole or in part, including that Plaintiffs are guilty of unclean hands; they have waived any rights regarding any alleged acts or omissions by the Commission; they are estopped from asserting any rights for alleged acts or omissions by the Commission; their claims are barred by the applicable statute of limitations; their claims are barred by the doctrine of laches; they have not been damaged; their assessments have not been spent for non-germane, ideological or political speech; and that Plaintiffs would be unjustly enriched if they are not assessed for the Commission’s programs but continue to benefit from them.

B. STANDARDS GOVERNING RES- ■ OLUTION OF SUMMARY JUDGMENT OR SUMMARY ADJUDICATION MOTIONS.

Summary judgment is proper when it is shown that there exists “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. A fact is “material” if it is relevant to an element of a claim or a defense, the existence of which may affect the outcome of the suit. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626 , 630 (9th Cir. 1987). Materiality is determined by the substantive law governing a claim or a defense. Id. The evidence and all inferences drawn from it must be construed in the light most favorable to the nonmoving party. Id.

The initial burden in a motion for summary judgment is on the moving party. The moving party satisfies this initial burden by identifying the parts of the materials on file it believes demonstrate an “absence of evidence to support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmoving party to defeat summary judgment. T.W. Elec., 809 F.2d at 630. The nonmoving party “may not rely on the mere allegations in the pleadings in order to preclude summary judgment,” but must set forth by affidavit or other appropriate evidence “specific facts showing there is a genuine issue for trial.” Id. The nonmoving party may not simply state that it will discredit the moving party’s evidence at trial; it must produce at least some “significant probative evidence tending to support the complaint.” Id. The question to be resolved is not whether the “evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” United States ex rel. Anderson v. N. Telecom, Inc., 52 F.3d 810, 815 (9th Cir.1995). This requires more than the “mere existence of a scintilla of evidence in support of the plaintiffs position”; there must be “evidence on which the jury could reasonably find for the plaintiff.” Id. The “more implausible the claim or defense asserted by the nonmoving party, the more persuasive its evidence must be to avoid summary judgment.” Id. As explained in Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099 , 1102-1103 (9th Cir.2000):

1. BURDEN OF PROOF.

Plaintiffs assert the following contentions regarding the respective burdens of proof in connection with these motions:

The Commission argues that Plaintiffs are wrong about which party has the burden of proving that the Commission’s speech is government speech and that the table grape industry is collectivized:

Noting that Rule 8(c), Federal Rules of Civil Procedure lists specific affirmative defenses, including “any other matter constituting an avoidance or affirmative defense”, the Commission cites Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1088 (9th Cir.2002):

The Commission correctly asserts the burden of proof is on Plaintiffs. Plaintiffs have the burden to prove that the Commission’s program pursuant to the Ketchum Act is subject to the First Amendment and that the program violates the First Amendment.

C. STATEMENTS OF UNDISPUTED FACTS.

The parties’ Undisputed Stipulated Facts are 63 pages long and include 170 separately numbered paragraphs containing a multitude of facts.

The Commission’s Statement of Undisputed Facts is 83 pages long, is comprised of 235 facts (with numerous subparts) and has a table of contents. Plaintiffs’ Objections and Response to the Commission’s Statement of Undisputed Facts is 137 pages long, and uses the following abbreviated keys: “‘Stip.’ stands for stipulated; ‘Undis.’ stands for undisputed; ‘Disp.’ stands for disputed; ‘Obj.’ stands for objection; and ‘Rel.’ stands for not relevant.” In addition, Plaintiffs assert:

Also, to the greater extent, Plaintiffs’ objections to or disputes with the Commission’s Statement of Undisputed Facts are string-cite objections, i.e., not relevant, hearsay, lack of foundation, improper lay opinion, conclusory, violation of best evidence rule, with no supporting law or analysis.

Plaintiffs Statement of Undisputed Facts is 8 pages long and is comprised of 43 facts.

Because of the magnitude of the factual positions of the parties, in the interests of economy, a separate Statement of Undisputed Facts will not be provided, instead the relevant undisputed facts and certain disputed facts necessary to ruling on the motions will be included in this Memorandum Decision.

D. UNDISPUTED STIPULATED FACTS.

1. California has the largest agricultural production of any state in the nation.

2. The California Department of Food and Agriculture (“CDFA”) estimated that in 2004, California’s growers produced almost $32 billion in agricultural commodities, valued at the farm-level.

3. Of that figure, grape growers as a whole, including wine, raisin, and table type grapes, accounted for 8.6%.

4. The volume of California table grapes shipped has increased from the equivalent of approximately 37 million 19-pound boxes of grapes per year when the Commission was first created to approximately 94 million 19-pound boxes in 2005.

5. Approximately 97%-99% of the table grapes grown in the United States are grown in California.

6. The total F.O.B. value (value at the point of shipping including picking, packing, and extra services such as cold storage and placing on pallets, as voluntarily reported to the United States Department of Agriculture (“USDA”)) of the California table grapes shipped to buyers in 2004 was just over $1 billion.

7. Table grapes are grown in California in the Coachella and San Joaquin valleys on approximately 110,000 acres of land.

8. According to the United States Department of Agriculture, farm and farm-related employment accounted for 2.75 million jobs in California in 2002-over 13.8 % of the state’s total employment.

9. In sum, agriculture and the table grape industry are important parts of the California economy.

10. At present, there are 35 active federal regional marketing orders in place and 17 national programs that cover blueberries, beef, cotton, dairy, eggs, milk, Hass avocados, honey, lamb, mangoes, mushrooms, peanuts, popcorn, pork, potatoes, soybeans, and watermelons.

11. In addition to the federal marketing orders covering the state, California currently has 53 active commodity marketing programs. These programs cover about 65% of the value of California’s agricultural production, and include programs for four of California’s top five agricultural products (dairy products, greenhouse/nursery products, grapes, almonds, and cattle/calves).

12. The California Table Grape Commission was established in 1967 by an act of the California Legislature called the Ketchum Act. Its purposes include expanding and maintaining demand for California table grapes worldwide and preventing economic waste of the agricultural wealth of the State of California. The California Legislature has also declared that the Commission’s activities (and those of other commissions) are essential to the goals and interests of the State of California in, among other things, marketing research and trend analysis, elimination of tariff and non-tariff barriers, consumer education relating to the health and other benefits of consuming agricultural products, and “Cooperative crisis resolution.”

13. The Commission is comprised of 18 commissioners representing the six active table grape growing districts in the State of California and one “public member,” all of whom are appointed and subject to removal by the Secretary of the California Department of Food and Agriculture (“CDFA”). Prior to appointment, the CDFA inquires into whether potential commissioners are suitable for appointment.

14. The Commission’s work is funded primarily through assessments that are imposed on all shipments of California table grapes pursuant to the Ketchum Act. Those assessments are paid to the Commission by shippers who are authorized to collect the assessments from the grower of the fruit shipped.

15. The Commission office is located in Fresno, California, where it employs 17 people. It has one employee in Texas. In addition, the Commission contracts for the services of a number of consultants, including one domestic representative who works out of Canada and international representatives in Australia, New Zealand, the United Kingdom, Germany, Japan, South Korea, Hong Kong, Singapore, India, Venezuela, Costa Rica, Mexico, the Philippines, Taiwan, and the United Arab Emirates.

16. The Commission’s fiscal year runs from May 1 to April 30. The 2004-2005 fiscal year therefore closed on April 30, 2005. The Commission’s expenditures for the 2004-2005 fiscal year were $12,015,653. Its adjusted carryover and revenue was $12,497,031. Assessments paid to the Commission (and not into an escrow account) for California table grapes shipped in 2004-2005 accounted for $8,367,429 of that amount. The remaining revenues came principally from federal international marketing grants.

17. The season for California table grapes runs from May through January. In the early part of the season, retailers purchase grapes grown in the Coachella Valley of California. During this early part of the California season, late season and storage table grapes from Chile and South Africa are still in the market and new crop grapes from Mexico have entered the market. As the season progresses, California table grapes from the Bakersfield area and then farther north are available. By the middle of July, usually only California table grapes are in the domestic market. By November, grapes from a number of southern hemisphere countries (including Brazil, Peru, and Chile) are back in the market.

18. There are at least four different principal paths for California table grapes to travel from the vineyard to the final end retail consumer in the domestic market.

19. All four principal paths start with a grower who harvests the table grapes and a shipper who packs the grapes and finds a first buyer for them. Sometimes growers act as their own shippers. Other times growers contract with a separate entity to act as the shipper.

20. All four principal paths end with a retailer making a sale to a customer. While there are different, kinds of retailers (large supermarket chains, mom-and-pop grocery stores, fruit stands, farmers’ markets etc.), the vast majority of grapes are sold by large retail chains such as Safeway, Albertson’s, Kroger, or Wal-Mart.

21. The distinction between the four principal paths is in how the grapes go from the grower/shipper to the retailer.

22. California grapes travel along similar paths to consumers in international markets.

23. Although there are four distinct paths along which California table grapes generally travel from vineyard to consumer, there are ultimately two distinct markets for California table grapes. First, there is the market in which retailers and wholesalers purchase California table grapes from grower/shippers (the “wholesale market”). Second, there is the market in which consumers purchase California table grapes from retailers (the “retail market”). These markets operate very differently.

24. Produce retailers, such as supermarket chains like Vons, purchase table grapes in the wholesale market, either from grower/shippers, brokers, distributors, or wholesalers. Retailers make four principal decisions when participating in the wholesale market: (1) what quantity of table grapes to put on their shelves, (2) from which production area (Chile, Mexico, California) to buy table grapes, (3) from which specific shippers to buy table grapes, (4) and what price they will pay. Retailers also consider the color and level of fruit quality (e.g., “A” box, “B” box, etc.) of the grapes they sell and whether grapes are seedless.

25. In deciding what quantity of table grapes to put on their shelves and where to put them, retailers must weigh the value of selling grapes versus the value of selling other products. Every square foot allocated to table grapes means one less square foot allocated to something else in the produce department. And every square foot allocated to produce is one square foot less available in the store for toothpaste, coffee, and everything else.

26. California table grapes compete with grapes from other countries (during certain parts of the year) and other fruits (like apples) for shelf space within the produce department. California table grapes and other “snack” produce also compete with “salty snacks,” like potato chips and pretzels and with snacks like candy and ice cream, for overall snack shelf space.

27. Competition for shelf space between different types of produce and among different types of products (produce vs. dairy, for example) is fierce. There is competition across departments and within departments. Foods and non-foods compete for space. Moreover, there is competition for the best shelf space in a grocery store.

28. The goal of individual grower/shippers of table grapes is to obtain the highest price and maximize their own sales. That is, individual grower/shippers are interested only in expanding their slice of the overall table grape market.

29. Every year, each grower/shipper has different levels of fruit quality to sell to his/her customers. A common method of identifying quality is to designate a box of grapes as an “AA” box (highest quality), an “A” box, a “B” box, and a “C” box. Most grower/shippers offer all four levels. It is possible for different grower/shippers to have more- — or less — of the highest quality fruit than their competitors. A particular grower/shipper may generally have a higher percentage of the highest quality fruit than another grower/shipper. But it is possible for that grower/shipper to suffer from adverse weather patterns in a particular year and thus have less highest quality fruit than the grower/shipper whose fruit is generally not as good.

30. Consumers do not shop for grapes with brand names in mind. Rather, table grape consumers consider primarily the ripeness and freshness (ie., quality) of the grapes, the taste of the grapes, the variety and whether the grapes are seeded, and the price of the grapes.

31. Consumer survey evidence indicates that when shoppers buy produce generally, brand is typically not an important factor. While for some types of produce, such as bananas and oranges, brand is more important than it is for grapes, it is still subordinate to a host of other factors like ripeness and freshness (ie., quality), color, and price.

32. In large retail stores, grapes are typically not sold in their boxes, so customers never see the labels on those boxes. Store signage typically does not indicate the name of the grower/shipper of the table grapes being displayed. And most of the time grapes’ packaging does not reveal the grower/shipper’s name.

38. In general, there is less consumer recognition of brands of produce than other food products.

34. Individual California table grape growers and shippers conduct virtually no direct advertising to consumers in the retail market.

35. To achieve its statutory objective of maintaining and expanding demand for California table grapes worldwide, preventing economic waste of the agricultural wealth of the State of California, and promoting the health of the people of California, the Commission conducts a variety of activities that fall into five general categories: (1) Research, (2) Trade Management, (3) Issues Management, (4) Advertising, and (5) Education/Outreach.

36. The Commission’s research activities are broad ranging and include consumer, trade, viticulture, industry statistical, and nutrition research.

37. The Commission’s trade management activities focus on working with the retail and wholesale produce trade, domestically and internationally, to create demand for the volume of fresh California grapes grown each season.

38.The Commission’s issue management work is varied, as the issues that might impact demand for the crop can vary week-to-week, month-to-month, and season-to-season.

39. The Commission conducts advertising campaigns to reach consumers with paid messages designed to increase overall demand for fresh California grapes.

40. The Commission’s education and outreach activities are designed to provide education, training, analysis, and general information to retailers, wholesalers, food-service operators, grower/shippers, researchers, consumers, and others such as teachers, editors, authors, doctors, and nutritionists.

41. The Commission operates five principal ongoing programs: Viticulture and Technical Issues, Advertising, Domestic Marketing, International Marketing, and Consumer Education. Each program involves activities that fall within one or more of the categories described above in paragraphs 36-40.

42. The viticulture and technical issues program has three areas of focus: viticulture research, technical issues management, and patenting/licensing. The program includes activities falling within the following categories: research, issue management, and education and outreach.

43. The viticulture research program involves directing and overseeing the funding and implementation of viticulture research performed by scientists from a variety of research institutions including the University of California, USDA, and California State University. The research is designed to increase grower efficiency and improve table grape production and fruit quality.

44. Technical issues management encompasses the Commission’s work related to pesticides, pest exclusion, production, packaging, distribution, and quarantines. It includes technical analysis related to the Commission efforts to expand international market access by, among other things, developing international shipping protocols and participating in trade barrier negotiations.

45.The patenting and licensing program revolves around the Commission’s efforts to develop new varieties of table grapes jointly with the USDA and to protect the intellectual property developed through U.S. patents, international plant protection, and domestic and international licenses.

46. In 2004-2005, the Commission’s viticulture and technical issues program spent $807,377 in assessment dollars on the following categories of activities $548,711 on viticulture research, $12,370 on outreach, and $246,296 on issue management.

47. Since the Commission began funding the USDA breeding program, USDA has developed 10 new varieties of grapes that are currently being marketed and two varieties that are not yet in production. Together, the 10 varieties being currently marketed account for approximately 30% of California grape shipments.

48. The following varieties were developed under the joint USDA/Commission program: Autumn Seedless, Autumn Black, Crimson Seedless, Autumn Royal, Fantasy Seedless, Fresno Seedless, Black Emerald, Princess, Summer Royal, Sweet Scarlet, Scarlet Royal (not yet in production) and Autumn King (not yet in production).

49. The Commission has also helped to fund the development of the Red Globe and Christmas Rose varieties. In total, varieties funded by the Commission account for approximately 45% of the volume of California table grapes shipped to market, and California produces approximately 97%-99% of the commercially grown table grapes in the United States.

50. The Commission’s initiative to obtain patent protection for newly developed varieties has the potential to be beneficial to the California table grape industry.

51. The California Legislature has directed the Commission to undertake advertising that “promote[s] the sale of fresh grapes” and the Commission has consistently followed that legislative directive.

52. The consumer advertising undertaken by the Commission is known as “generic advertising” because it promotes the entire category of fresh grapes from California. It does not specify any one type of fresh California grape or any one producer of fresh California grapes. Instead, it speaks to the general characteristics of all fresh California grapes — that they are flavorful, convenient, and healthful.

53. All of the Commission’s radio, television, print media, and billboard advertisements are intended to “promote the sale of fresh grapes.” Commission advertisements have not promoted products other than grapes and have not disparaged other California agricultural products. The Commission has not run political or ideological advertisements, and all of the Commission’s advertisements have been in good taste and have not been false or misleading.

54. The development of the Commission’s advertising campaign begins with consumer research.

55. The research is then analyzed by the Commission staff and its advertising agency — currently McCann Erickson, San Francisco — to develop potential advertising messages to “promote the sale of fresh grapes” and the most effective medium to transmit that message. The potential messages are then taken to additional focus groups to determine their effectiveness in motivating consumers to purchase and consume more fresh California grapes.

56. The current advertising campaign takes into account the fact that fresh California grapes are consumed primarily as a snack and emphasizes that fresh California grapes are a more healthful alternative to other snack food such as ice cream, french fries, chips, and buttered popcorn.

57. The advertising is done primarily in outdoor billboards and in 10-second traffic radio commercials. The Commission also ran a limited amount of television advertising in the fall of 2005 on the Food Network.

58. The Commission’s outdoor billboards use beautiful images of grapes contained in packaging typically associated with less healthful snack foods such as popcorn, potato chips, french fries, and ice cream to remind consumers that grapes are a healthy alternative to these other snack foods.

59. The Commission’s radio advertisements are in the form of short radio messages that air during radio traffic reports when consumers are thought to be paying close attention to what they hear on the radio. The messages remind consumers where to go to get the fresh California grapes they enjoy and encourage consumers, while they are out on the road, to stop into the featured store and buy grapes. Like the billboards, these advertisements emphasize that California table grapes are a healthy alternative to other snack foods.

60. In 2004 and 2005, the Commission ran two 15-second advertisements on the cable channel the Food Network during the seven-day-a-week cooking program “Sara’s Secrets” featuring renowned chef Sara Moulton.

61. Past themes of the Commission’s advertising include: (a) “Good things come in bunches.”; (b) “Share some California grapes.”; (c) “Life is complicated. Grapes are simple.”; and (d) “California grapes. The Natural Snack.”

62. The Commission’s advertising is designed to be as motivating to consumers as possible, but it is also used as an incentive for retailers.

63. The Commission’s advertising is meant to work in conjunction with the Commission’s other efforts.

64. In 2004-2005, the Commission’s advertising program spent $2,042,247 in assessment dollars on the following categories of activities: $229,003 on consumer research and $1,813,244 on direct advertising.

65. Most of the advertising on television, in print, or on the radio is “branded product” advertising. Advertising for “Pepsi” soda, “Tide” laundry detergent, and “Crest” toothpaste are familiar examples. The goal of this type of advertising is almost entirely to increase sales of the particular product advertised, not to increase overall consumption of a category of product.

66. Product differentiation can stem from actual differences between products — the Microsoft Windows operating system works differently from the operating systems of its competitors. Or product differentiation can result from an extensive advertising campaign that creates perceived differences between products— some consumers prefer Coke while others prefer Pepsi, yet the actual differences between the products may be slight.

67. The California table grape industry is estimated to have 550 growers currently, including grower-shippers. Large growers have market shares only in the single digits.

68. Unlike “branded product” advertising, which often seeks to create preferences in the minds of consumers even absent substantial differences in the products sold, generic advertising often promotes actual characteristics of a category of products. Table grapes, for example, are promoted for their health benefits, convenience of consumption, and good taste.

69. Generic regional advertising is intended to promote all table grapes from a particular region, such as California. This advertising is still generic in that it does not distinguish between different California producers, but it does seek to distinguish California table grapes from grapes grown in other regions.

70. Generic regional advertising allows producers in a region who feel they are too small to run their own advertising to band together and fund efforts to run advertisements focusing on the general attributes of the category of products.

71. Economists have been modeling and measuring the impacts of commodity programs for at least 20 years.

72. The Commission’s current advertising campaign (“Snacks”) was designed to target women aged 25 to 54 and to convey the message that grapes are a healthy alternative to other snack foods based on market data that revealed that the primary shoppers in most households are women in that age range and these women were concerned with providing healthy, tasty, convenient foods to their families.

73. According to consumers in focus group studies, the Commission’s generic “California” advertising campaign motivates consumers to want to purchase more California table grapes.

74. In a focus group study, the “Snacks” campaign was viewed favorably by participants. All participants readily discerned the message that grapes are a healthy alternative to other snack foods.

75. Any additional revenue to farmers that might be realized due to the Commission’s advertising, trade management, and education and outreach generally results in additional jobs in the agricultural industry.

76. Like other states, California and its citizens face a number of significant health problems related to poor diets.

77. Eating more fruits and vegetables helps to reduce diseases. Eating five to nine servings of fruit and vegetables each day helps protect against heart disease and cancer. Eating fruits and vegetables also has the potential to reduce the risk of obesity and many other chronic diseases including stroke and diabetes.

78. California adults consume, on average, fewer than four daily servings of fruits and vegetables, well below the five to nine daily servings recommended for good health. As a result, efforts to encourage people to eat more fruits and vegetables are important to the future of the state and to the country.

79. Any increase in demand for California table grapes benefits California table grape grower/shippers and the State of California generally.

80. The domestic marketing program is implemented by a staff of 4 people, which includes Cindy Plummer, Jane Lytle, Karen Hearn, and Brad Brownsey (a consultant).

81. The domestic marketing program conducts domestic trade management as well as research and education and outreach.

82. The purpose of the program is to increase the movement of fresh California grapes from field to market or professional kitchen. The program targets (1) retailers and wholesalers of fresh grapes and (2) foodservice entities.

83. The Commission works with retailers and wholesalers to increase the quantity of California table grapes sold during a season, the square feet of display space that will be allocated to California table grapes, the number of varieties displayed, the effectiveness of the displays, and the number and effectiveness of table grape advertisements run by retailers.

84. Among other things, the Commission works to “educate and instruct the ... retail trade with respect to proper methods of handling and selling fresh grapes,” as contemplated by the California Legislature.

85. The portion of the Commission’s trade management program directed toward domestic retailers can be divided into the following subcategories: (a) category management; (b) promotional agreements; (c) tagged advertising, and (d) training.

86. Conducting category management research is one way the Commission seeks to encourage retail grocery stores to sell a greater volume of table grapes. Category management involves the development of a comprehensive strategy for expanding sales of a category of product, in this case California table grapes. Category management research — on which the Commission spent nearly a quarter of a million dollars in both 2004 and 2005 — allows the Commission to provide retailers information about the value of selling fresh California grapes and the tactics that research has indicated increase sales of fresh grapes.

87.Every year the Commission enters into promotional agreements with retailers and wholesalers.

88. The domestic marketing program offers retailers tagged advertising to encourage them to run more advertisements for grapes.

89. Because consumers prefer table grapes that are in good condition, the Commission also provides training or training materials to targeted retailers in the proper procedures for handling, storing, and displaying table grapes.

90.The Commission devotes significant efforts to encourage foodservice providers to increase the amount of fresh grapes they use.

91. In 2004-2005, the Commission’s domestic marketing program spent $ 1,445,-242 in assessment dollars on the following categories of activities: $1,066,748 trade management, $328,554 research, and $49,940 education and outreach.

92. Just four years ago, the Commission conducted little category management research, but now the Commission has developed a category management research program. In recognition of the Commission’s new category management research efforts, the Commission recently won the “Category Captain” award for random weight produce from Progressive Grocer magazine.

93. In 2004, the Commission had incentive agreements in place with the retailers whose stores sell approximately 81.2% of the table grapes sold in the United States and Canada. Each year the Commission provides rewards to retailers under these contracts totaling approximately $450,000 to $500,000.

94. Retailers participating in the Commission’s September 2005 display contest reported average increases of grape sales of 217% over normal sales for that time period. Research shows that just over 50% of the (1251) table grape purchasers surveyed decide to buy grapes once they are in the store and just over 60% of those who decide in the store to buy grapes do so because the grapes look good.

95. The Commission undertakes an extensive amount of consumer preference research.

96. McDonald’s decided in May 2005 to start selling the new Fruit and Walnut Premium Salad, which features fresh grapes. The appearance of fresh grapes on the McDonald’s menu followed more than two years of work by the Commission with McDonald’s menu developers. McDonald’s indicated that it planned to buy 6.5 million pounds of fresh grapes in 2005, but McDonald’s has not made public the amount of California table grapes that actually were purchased that year.

97. A 1993 consumer survey indicated that 82% of responding primary grocery shoppers agreed that “grapes are a healthy, nutritious snack.” A 2005 consumer survey indicated that 99% of U.S. and Canadian shoppers surveyed believe fresh grapes are “extremely good/good for you.”

98. The primary activities of the Commission’s international marketing program can be broken down into three areas: (1) market access (which falls within the issue management category), (2) international trade management, and (3) international research.

99. In 2004-2005, the Commission’s international marketing program spent a total of $4,666,522. Of that amount, $1,288,853 came from assessments and was spent on the following categories of activities: $121,176 for education and outreach, $170,114 for research, $238,847 for issue management, and $758,717 for trade management.

100. The market access work undertaken by the international marketing program is principally financed with assessment dollars.

101. The Commission received $2,958,649 in MAP funds for 2004; to date for the 2005 fiscal year the figure is $2,501,538, as not all MAP funding has been received.

102. In order to obtain these funds, the Commission must agree to match a certain percentage of the MAP funds with its own funds. For 2005, the Commission agreed to match 79% of the MAP funds with its own spending.

103. USDA data indicate that between 1995 and 2004 the volume of fresh grape exports has increased 63% and the value of those exports has increased 78%.

104. In addressing market access issues, the Commission works closely with USDA and the Office of the U.S. Trade Representative (“USTR”) in attempts to enhance the position of the table industry in negotiations between the United States and other governments. The Commission also retains a consultant, BryanfrChristie, Inc., that specializes in market access issues.

105. Market access work is divided into three primary areas: opening markets, keeping markets open, and providing broader access through the elimination of tariff and nontariff trade barriers.

106. First, the Commission works with USDA and USTR to attempt to open new markets to fresh California grapes. For example:

U.S. and Chinese governments. The U.S. government worked to open the market at the urging of, and in conjunction with, the Commission. The Commission’s role in opening the market was two-fold: keeping the U.S. government focused on getting the market open; and participating with the U.S. government in the development of a work plan that outlined the rules under which the fruit could be shipped between the two countries.

f. The Commission is also working to facilitate expanded shipments into China by California grower/shippers.

107. Second, the Commission works with USDA, the USTR, foreign governments, and other interested parties to attempt to keep foreign markets open to California grapes by responding to incidents that arise that need a prompt resolution.

108. Third, the Commission works with the USDA and the USTR to attempt to lower tariff and non-tariff barriers that impede the flow of California table grapes to foreign countries.

109. The Commission’s international trade management activities, which are funded principally with MAP funds, target the trade: retailers, importers, and wholesalers. The goal of the program is to encourage retailers, importers, and wholesalers to buy more California grapes more often and during more of the California season (May-January).

110. The core of the Commission’s international trade management effort is the work of its 15 overseas representatives who work directly with overseas retailers, importers, and wholesalers. They provide grape storage, handling, and display information to retail stores.

111. The representatives also monitor local markets in their countries or regions and provide information that is conveyed in “Global Market Reports” that are sent twice a month during the California season to California table grape grower/shippers to help them, if they are interested, understand the dynamics at work in foreign markets.

112. A portion of the Commission’s international trade management consists of “joint promotions” with retailers. These joint promotions include activities such as in-store demonstrations where the Commission employs people to provide information and grape tastings to consumers, competitions for consumers to enter at the point of sale of table grapes, cooking demonstrations at the point of sale, special displays including secondary display locations and center aisle locations, point of sale posters, banners and the like.

113. The Commission also provides financial awards to retailers for certain grape promotional activities, like offering samples or otherwise featuring California grapes.

114. In support of its market access and international trade management efforts, the Commission conducts research on various international topics.

115. Exports of California table grapes have increased over the past decade.

116. Studies indicate that 94% of consumers surveyed in select markets in certain Central American countries are aware of U.S./California grapes, 78% of consumers surveyed in select markets in China are aware of U.S./California grapes, 97% of consumers surveyed in select markets in Hong Kong are aware of U.S./California grapes, 57% of consumers surveyed in select markets in Japan are aware of U.S./California grapes, 85% of consumers surveyed in select markets in Indonesia are aware of U.S./California grapes, 65% of consumers surveyed in select markets in Malaysia are aware of U.S./California grapes, 87% of consumers surveyed in select markets in the Philippines are aware of U.S./California grapes, 65% of consumers surveyed in select markets in Singapore are aware of U.S./California grapes, and 95% of consumers surveyed in select markets in Taiwan are aware of U.S./California grapes. Research has also shown that awareness of U.S./California as an origin for grapes in most export markets significantly increases the likelihood of trial by the consumer.

117. To receive MAP and EMP funds, a party must provide a certain level of matching funds, which the Commission is able to do.

118. The Commission has been able to increase the amount of federal funds it receives while the its contribution has remained fairly stable. While federal funds allocated to the Commission increased 69% in the five years between 2000 and 2004, the Commission’s contributions have increased only 20%.

119. The Commission has had success working with USDA and the USTR to open new markets to California table grapes. For example, since 1997, the Commission has been actively involved in efforts with USDA and the USTR to open China, India, and Australia. It also worked with USDA and the USTR to reopen the New Zealand market.

120.The Commission works with USDA, the USTR, foreign governments, and interested parties to keep existing markets open to California grapes.

121. The Commission’s consumer education program is intended to provide consumers with information about the health and nutrition benefits of fresh California grapes and with information about the industry, with the goal of keeping California table grapes “top-of-mind” for consumers and educating them about grapes and California’s fresh grape industry.

122. For example, the Commission sends recipe ideas, photography, and fresh California grape health information to newspaper food editors.

123. The Commission also regularly contacts writers and editors of consumer magazines to learn what would prompt them to write stories about fresh grapes and then responds by providing them with the latest research on grape phytonutrient, photography, recipe ideas, and news about the industry.

124. In 2004, the Commission contacted television stations and cable broadcast networks and made available to them a spokesperson (Food Network host, celebrity chef, and award-winning cookbook au thor Kathleen Daelemans) hired by the Commission to explain how fresh California grapes can be an important part of a healthy diet. In response, 47 television stations decided to air footage of Ms. Daelemans talking about grapes. She also appeared by tape on the Health and Home Report, a syndicated television show that airs on cable broadcast networks.

125. The Commission produces educational brochures and publications that detail the history of the industry, the health benefits of eating fresh grapes, and usage ideas such as freezing grapes for a cool summertime treat or adding them to salads for a pleasing hint of sweetness, color, and a crisp texture. This information is also included on the commission’s website at www.freshCaliforniagrapes.com.

126. The Commission sends materials to members of the American Dietetic Association and meets with dietitians, nutritionists, and family physicians, answering their questions about the health benefits of fresh California grapes and providing them with the information and resources the Commission thinks they need to confidently recommend to their clients, consumers, or patients that fresh California grapes should be a part of their diet.

127. Each year the Commission sends out news releases announcing the start of the California table grape season and conducts outreach on television (e.g., sending grapes to television newscasters and conducting live interviews) to tell people that they are now able to purchase California grapes.

128. In 2004-2005, the Commission’s consumer education program spent $694,229 in assessment dollars on the following categories of activities: $56,084 on research and $638,145 on education and outreach.

129. The Commission provides information about California table grapes to newspapers to encourage them to run stories about California grapes. The firm that tracks news coverage for the Commission .(Burrelle’s Information Services) found that in 2004 a significant number of stories about fresh grapes and the California industry were based on this information.

130. The Commission also provides information about California grapes to magazine writers and editors. The consumer research and public relations firm Fleishman-Hillard found that in 2004, more than 90 articles based on this information appeared in major consumer magazines like Better Homes and Gardens, Bon Appetit, Family Circle, Good Housekeeping, Martha Stewart Living, and Woman’s Day.

131. In addition to the Commission activities that fall generally within one of the five principal Commission programs, a number of Commission issue management activities fall outside of the established programs. One such activity is the Commission’s phytonutrient research program. Another is its work with foundations that work to educate consumers about the value of a good diet.

132. The Commission’s phytonutrient research program funds research into the potential health benefits of table grapes.

133. In 1997, a researcher from the University of Illinois, Chicago, published a study that found that a substance called resveratrol fought cancer at three different stages of its growth. The predominant dietary source of resveratrol is grapes.

134. The Commission, after speaking with the researcher, Dr. John Pezzuto, held a symposium on grape phytonutrient among researchers exploring the human health potential of grape compounds and then created a scientific advisory panel, chaired by Dr. Pezzuto, to advance the science Unking fresh grapes with the prevention of disease and improved human health.

135. One of the foundations of the Commission’s research is a standardized preparation of fresh California grapes used for the research, which the Commission developed.

136. Since 1998, the Commission has funded or supported 29 research studies.

137. As research studies are completed and published and new information about the impact of grape consumption on human health is generated, this information is disseminated to the media and others, such as dieticians, nutritionists, and family physicians.

138. In 2004-2005, the Commission spent approximately $270,000 on its phytonutrient research efforts.

139. The Commission has been and continues to be involved in the efforts to address obesity and improve the health of consumers by working with various foundations that educate consumers about the value of a good diet.

140. The Commission’s efforts to develop a standardized freeze-dried mixture of California grapes that can be used in research projects have helped improve research on the health benefits of grapes.

141. Researchers funded by the Commission have found links between the compounds in fresh California grapes and fighting or preventing diseases such as cancer, heart disease, and degenerative nerve damage.

142. The Commission’s health research program and the work of its Scientific Advisory Panel has been helpful in generating research and awareness of the health potential for fresh grapes and fresh grape compounds in the scientific community. For example, there are researchers exploring potential links between grapes and prevention of certain viruses as well as prevention of Alzheimer’s disease.

143. Consumer research by the Commission has shown that the existence of a health claim that eating grapes is beneficial to one’s health would motivate some primary grocery shoppers to purchase and consume more fresh California grapes more often.

144. Research by the Commission has shown that awareness of the health benefits of fresh California grapes can be a motivating purchase factor for a majority of primary grocery shoppers even without the health claim.

145. The Commission’s support of the California and national 5 A Day programs and the Produce for Better Health Foundation, in conjunction with the efforts of other groups, has been important in those programs in encouraging Californians and Americans to eat more fruits and vegetables and thereby improve their health.

146. If an individual promotion program would be profitable without a generic promotion program, it would also be profitable with a generic promotion program.

147. The process of obtaining the federal funds used by the Commission is complex and cumbersome, but the Commission is willing and able to dedicate the resources necessary to obtain the funding.

148. The Commission is able to provide the matching funds required to obtain federal export grant money.

149. Individual grape grower/shippers do not have the incentive to conduct the consumer education activities undertaken by the Commission.

150. The Plaintiffs conduct no significant direct advertising to consumers.

151. The Susan Neill Company and Lucas Brothers Partnership no longer grow or ship California table grapes and therefore no longer pay assessments to the Commission.

152. Susan Neill Company has never itself borne the cost of the assessments paid on grapes it has shipped. Susan Neill Company has always passed the cost of the assessment on to Lucas Brothers Partnership.

153. The Commission was created by the California Legislature, and the Legislature has defined its duties.

154. The CDFA oversees and conducts voting on five-year and special termination referenda under the Ketchum Act.

155. The CDFA oversees the nomination and selection of producers eligible to be appointed to the Commission board by the Secretary.

156. All of the Commissioners of the Commission are appointed and subject to removal by the Secretary.

157. The Commission, like other mandated commodity organizations overseen by the CDFA, pays its share of the common expenses incurred by the marketing branch of the CDFA.

158. California table grape growers have filed grievances with the Commission, as permitted under the Ketchum Act, on at least four occasions in the past.

159. When a grievance is filed, the grower is given an opportunity to present his position to the Commission and then the Commission renders a decision, which can be appealed to the CDFA.

160. In 2004, a grower appealed the Commission’s denial of his request for disclosure of the salary of the Commission President under the Public Records Act. After receiving the appeal, the Secretary asked the Commission to submit the video tape of the hearing at which the grievance was presented and to explain the rationale behind its decision. After considering the Commission’s submission, the Secretary rendered a decision reversing the Commission’s determination and ordered disclosure of the salary. The Secretary held that the Commission “is a government entity within the meaning of the Public Records Act.” The Commission then disclosed the requested information as ordered.

161. The CDFA has indicated that if a person complained to the CDFA about a Commission advertisement, the CDFA would review the matter internally and could act to block the ad or advise that it be changed.

162. Each month the Commission receives the CDFA’s Marketing Memo, which contains information and instructions for marketing orders, agreements, councils, and commissions.

163. The CDFA has provided guidance to the Commission regarding the level of reserves it maintains.

164. The CDFA can, if it wants, request that the Commission provide it with information, including notices of meetings, meeting minutes, contracts, and copies of advertisements.

165. The Commission responds to any requests for information from CDFA marketing branch staff.

166. The CDFA conducts audits of grape shippers on behalf of the Commission.

167. The Commission complies with certain legal requirements imposed on some state agencies.

168. Commission employees are eligible to participate in the state’s Savings Plus Program, a retirement saving program for state employees, but are not required to.

169. The CDFA provides Commission employees with a template for creating identification cards that allow them to take advantage of special rates for state employees, but said employees are not required to do so.

170. Commission employees may, and are encouraged by the CDFA to, use State of California employee travel discounts.

E. STANDING OF THE SUSAN NEILL COMPANY AND LUCAS BROTHERS PARTNERSHIP.

A footnote to the Commission’s opening memorandum supporting its motion for summary judgment argues that Plaintiffs The Susan Neill Company and Lucas Brothers Partnership lack standing to seek any prospective relief because they stipulated that these plaintiffs “no longer grow or ship California table grapes and therefore no longer pay assessments to the Commission.”

Plaintiffs respond that this stipulated fact is “irrelevant to the extent that these two Plaintiffs are seeking refunds of past paid assessments.” This is a concession that The Susan Neill Company and Lucas Brothers Partnership no longer have standing to obtain prospective relief.

The Commission also cites to the stipulated fact that the “Susan Neill Company has never itself borne the cost of the assessments paid on grapes it has shipped [and that] Susan Neill Company has always passed the cost of the assessment on to Lucas Brothers Partnership”. Plaintiffs respond by an objection on the ground of relevance. In a footnote to their opposition brief to the Commission’s motion for summary judgment, Plaintiffs object to the contention that the Susan Neill Company has no standing: “First of all Susan Neill is married to George Lucas, general partner of Lucas Bros, partnership. Secondly, the Susan Neill Company does have standing since the [Act] does require the shipper (Susan Neill) to actually pay the assessments to the Commission, regardless of whether she passes that on to Lucas Bros.”

As the Commission correctly responds, Plaintiffs’ contentions do not establish standing for The Susan Neill Company:

The Commission’s motion for partial summary judgment on the grounds that The Susan Neill Company lacks standing to obtain relief as that entity never paid assessments and that the Lucas Brothers Partnership lacks standing to obtain prospective as opposed to past relief is GRANTED and Plaintiffs’ motion for summary judgment on this issue is DENIED.

F. GOVERNMENT SPEECH.

The parties respectively move for summary judgment that the Commission’s program is or is not “government speech,” subject or not subject to First Amendment protections.

Relying on the Supreme Court’s opinion in Johanns v. Livestock Marketing Ass’n., 544 U.S. 550 , 125 S.Ct. 2055 , 161 L.Ed.2d 896 (2005), Plaintiffs argue that the Act’s provisions and the California Department of Food and Agriculture’s involvement “in the Commission’s speech, let alone [the Commission’s] activities, [are] not even arguably in the same ball park compared to the control over the make-up and communications of the Beef Board.” Plaintiffs argue the Commission’s program is not “government speech” as that term is defined in Johanns and summary adjudication in their favor on this issue is appropriate.

The Commission rejoins that the Commission’s speech is “government speech” for three reasons: “(1) the messages Plaintiffs challenge were mandated by the California Legislature; (2) the Commission itself is a governmental entity; and (3) the CDFA retains effective control over the Commission’s speech because it appoints and can remove Commission board members and is empowered to reverse any improper actions taken by the Commission.”

1. Johanns v. Livestock Marketing Ass’n.

In Johanns v. Livestock Marketing Ass’n., the Supreme Court addressed “whether the generic advertising at issue is the Government’s own speech and therefore is exempt from First Amendment scrutiny.” 544 U.S. at 553 , 125 S.Ct. 2055 . The Beef Promotion and Research Act of 1985, 7 U.S.C. § 2901 (b), announces a federal policy of promoting the marketing and consumption of “beef and beef products.” The statute directs the Secretary of Agriculture to implement this policy by issuing a Beef Promotion and Research Order (Beef Order or Order) and specifies four key terms the Beef Order must contain: (1) The Secretary is to appoint a Cattlemen’s Beef Promotion and Research Board (Beef Board or Board), whose members are to be a geographically representative group of beef producers and importers, nominated by trade associations; (2) the Beef Board is to convene an Operating Committee, composed of 10 Beef Board members and 10 representatives named by a federation of state beef councils; (3) the Secretary is to impose a $l-per-head assessment or checkoff on all sales or importation of cattle and a comparable assessment on imported beef products; and (4) the assessment is to be used to fund beef-related projects, including promotional campaigns, designed by the Operating Committee and approved by the Secretary.

The Secretary promulgated the Beef Order with the specified terms. The assessment is collected primarily by state beef councils, which then forward the proceeds to the Beef Board. The Operating Committee proposes projects to be funded by the checkoff, including promotion and research. The Secretary or his designee approves each project and, in the case of promotional materials, the content of each communication. Respondents sued the Secretary in federal court, arguing based on United Foods that the advertising promotes beef as a generic commodity which impedes their efforts to promote the superiority of American beef, grain-feed beef, or certified Angus or Hereford beef. Id. at 554-555 , 125 S.Ct. 2055 . After a bench trial, the district court ruled for respondents, declaring that the Beef Act and Beef Order unconstitutionally compel respondents to subsidize speech to which they object, and rejected the Government’s contention that the checkoff survives First Amendment scrutiny because it funds only government speech. Id., at 556 , 125 S.Ct. 2055 .

The Eighth Circuit affirmed the district court, although the Eighth Circuit did not find that the challenged advertising was government speech. Instead, the Eighth Circuit found that government speech is relevant only to First Amendment challenges to the speech’s content, not to challenges to compelled funding for the speech, and that compelled funding of speech may violate the First Amendment even if the speech in question is the government’s. Id., at 556-557 , 125 S.Ct. 2055 .

The Supreme Court noted that it had sustained First Amendment challenges to compelled expression in two categories of cases: “true ‘compelled speech’ cases in which an individual is obliged personally to express a message he disagrees with, imposed by the government; and ‘compelled subsidy’ cases, in which an individual is required by the government to subsidize a message he disagrees with, expressed by a private entity.” Id., at 557 , 125 S.Ct. 2055 . The Supreme Court recognized that it had not previously considered “the First Amendment consequences of government-compelled subsidy of the government’s own speech.” Id. Respondents there argued that the challenged promotional campaigns “differ dispositively from the type of government speech that, our cases suggest, is not susceptible to First Amendment challenge” by pointing to “the role of the Beef Board and its Operating Committee in designing the promotional campaigns, and to the use of a mandatory assessment on beef producers to fund the advertising.” Id., at 560 , 125 S.Ct. 2055 .

As to the identity of the speaker, respondents argued that “speech whose content is effectively controlled by a nongovernmental entity — the Operating Committee — cannot be considered government speech.” The Supreme Court ruled: “We need not address this contention, because we reject its premise. The message of the promotional campaigns is effectively controlled by the Federal Government itself.” Id. From this conclusion, the Supreme Court reasoned:

Id., at 560 n. 4, 125 S.Ct. 2055 . In explaining this conclusion, the Supreme Court stated:

Id., at 560-562 , 125 S.Ct. 2055 .

The Supreme Court rejected the argument that the beef program does not qualify as “government speech” because it is funded by a targeted assessment on beef producers, rather than by general revenues, thereby giving control to a narrow interest group that will not heed respondents’ objections, as opposed to politically accountable legislators:

Id., at 562-564 , 125 S.Ct. 2055 .

Finally, the Supreme Court refused to rule on the contention that crediting the advertising to “American Beef Producers” impermissibly uses not only their money but also their seeming endorsement to promote a message with which they do not agree. Respondents had argued to the Supreme Court that “[cjommunications cannot be ‘government speech’ ... if they are attributed to someone other than the government; and the person to whom they are attributed, when he is, by compulsory funding, made the unwilling instrument of communication, may raise a First Amendment objection.” Id., at 564 , 125 S.Ct. 2055 . The Supreme Court stated:

Id., at 564-566 , 125 S.Ct. 2055 .

2. Paramount Land Co., LP v. Cal. Pistachio Com’n.

Since these motions for summary judgment were argued and submitted, the Ninth Circuit decided Paramount Land Co., LP v. Cal. Pistachio Com’n, 491 F.3d 1003 (9th Cir.2007).

In Paramount, a group of pistachio growers (collectively referred to as Paramount) challenged the marketing and promotional activities of the California Pistachio Commission under the First Amendment and on various state law grounds. Paramount moved the District Court for a preliminary injunction. The District Court granted the preliminary injunction on the ground that it was unlikely that the California state government exercised effective control over the Pistachio Commission for its expressive activity to qualify as “government speech” under Johanns’ and that, under Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457, 469-70 , 117 S.Ct. 2130 , 138 L.Ed.2d 585 (1997) and United States v. United Foods, Inc., 533 U.S. 405, 415 , 121 S.Ct. 2334 , 150 L.Ed.2d 438 (2001), the assessments funded by the Pistachio Commission probably were not part of a larger economic regulatory scheme so as to make them constitutionally permissible under Glickman. 491 F.3d at 1008 . On appeal, the Ninth Circuit addressed “whether this generic advertising is ‘the Government’s own speech and therefore is exempt from First Amendment scrutiny’ under the Supreme Court’s analysis in Johanns v. Livestock Marketing Association.” Id., at 1005. Paramount describes the state regulation of pistachios:

491 F.3d at 1006-1007 . The Ninth Circuit then describes federal regulation of pistachios:

Id., at 10071

Based on the Supreme Court’s decision in Johanns , the Ninth Circuit ruled that Paramount had not shown a likelihood of success on the merits of the First Amendment claim:

491 F.3d at 1010-1012 .

3. Message Mandated by California Legislature.

The California Table Grape Commission was established and is regulated pursuant to Division 22 (Marketing Advisory and Promotional Agency Laws) of the California Food & Agriculture Code.

California Food & Agriculture Code § 63901, as enacted in 1995, is the California Legislature’s statement of purpose:

Section 63901 was amended in 2001. As amended, Section 63901 sets forth the California Legislature’s declaration:

Section 63901.3, enacted in 2001, provides: The Legislature further finds and declares that the commission and council activities are essential to the goals and interests of the State of California that include, but are not limited to, all of the following:

In Section 63901.4, enacted in 2001, the Legislature:

Section 63902, amended in 2001, provides:

Section 63903, enacted in 1997, provides that, “[i]n addition to the authority granted to any commission by Part 2 (commencing with Section 64001), those commissions may commence or participate in administrative and civil actions relative to the activities of the commission.” Pursuant to Section 63904, enacted in 1998, “[t]he Legislature finds and declares that the councils and commissions operating pursuant to this division are duly constituted authorities of this state for purposes of subdivision (i) of Section 610 of Title 7 of the United States Code.” 7 U.S.C. § 610 (i) provides:

Section 63905, enacted in 2001 and amended in 2006, provides:

The 2001 amendments and enactments were part of AB 1612. The Report of the California Senate Agriculture and Water Resources Committee explains the reasons for the 2001 amendments and enactments:

A series of cases and court rulings have clouded marketing orders, commissions, and councils [sic] legal status based on the First Amendment. In 1996, The [sic] United States Supreme Court held that the First Amendment was not violated when agricultural marketing orders, as part of a larger regulatory scheme, required fruit producers of California tree fruit to pay assessments for product advertising (Glickman v. Wileman Brothers and Elliott, 521 U.S. 457 , 117 S.Ct. 2130 , 138 L.Ed.2d 585 ). In [sic] June 25, 2001, the United States Supreme Court found that a federal marketing order covering generic mushroom promotion was a violation of the First Amendment (United States etal. [sic] v. United Foods, Inc., No. 00276, Decided June 25, 2001). The United Foods court found that no corollary to Glickmans cooperative marketing structure existed. The promotion activities the opponent was required to support was not directly associated with other regulatory activities as required in Glickman.

Many legal analysts believe the result of these cases is a spectrum. On one end is acceptable compelled speech if it is associated with a regulatory program. On the other end of the spectrum are programs that compel speech that are not associated with a comprehensive regulatory scheme. At this point, there is not a bright line determining where the appropriate level of regulation or identifying the necessary activities required for these programs.

PROPOSED LAW

This measure states that the agriculture and seafood industries are vitally important elements of the state’s economy and are supported by state established commissions and councils mandated to enhance and preserve the economic interests of California.

This bill contains findings and declarations stating that commissions and councils implement public policy through their expressive conduct and these programs are among the broad range of state mandated regulatory programs that are funded by the public generally through user fees assessed in accordance with each persons [sic] relationship to a particular program.

The bill amends several existing findings with clarifying language and further articulating the importance of these programs to the state’s economy.

The bill states additional findings concerning these programs importance to California’s interests and that these programs activities include but are not limited to the following:

The Commission notes that § 65572(h) empowers the Commission “[t]o promote the sale of fresh grapes by advertising and other similar means for the purpose of maintaining and expanding present markets and creating new and larger intrastate, interstate and foreign markets for fresh grapes; to educate and instruct the public with respect to fresh grapes; and the uses and time to use the several varieties, and the healthful properties and dietetic value of fresh grapes”. Section 65572® empowers the Commission, in its discretion, “to educate and instruct the wholesale and retail trade with respect to proper methods of handling and selling fresh grapes; to arrange for the performance of dealer service work providing display and other promotional materials; to make market surveys and analyses; and to present facts to and negotiate with state, federal and foreign agencies on matters which affect the marketing and distribution of fresh grapes; and to undertake any other similar activities which the commission may determine appropriate for the maintenance and expansion of present markets and the creation of new and larger markets for fresh grapes”.

The Commission argues that Plaintiffs do not dispute that the Commission has followed these statutory directives and that Plaintiffs, having dismissed with prejudice their challenges to particular activities conducted by the Commission, raise only a facial challenge to the Ketchum Act as a whole. The Commission asserts: “[I]f Plaintiffs challenge only the overall message of the program — a message that is defined by statute — Plaintiffs cannot plausibly claim that the speech they challenge is not government speech.” Therefore, the Commission contends, the level of oversight of the Commission’s activities by the CDFA is irrelevant.

In contending that Plaintiffs raise only a facial challenge to the Ketchum Act, the Commission relies on its Statement of Undisputed Facts:

CUF No. 203: Plaintiff Susan Neill Company does not object to the message of the Commission’s consumer education, research, or market access activities. Its only objection is that it does not want to fund these activities. See Neill Dep. 62:1-66:3, 83:24-84:12, 96:5-10, May 17 2004. To the extent The Susan Neill Company objects to any of the Commission’s messages, it is principally an objection to the advertising of all California table grapes as opposed to Lucas Brothers’ table grapes. See if. at 33:2-34:12.

Plaintiffs’ dispute CUF No. 203, asserting in pertinent part:

CUF No. 204.: Plaintiff Lucas Brothers does not object to the message of the Commission’s trade management activities directed to retailers, phytonutrient research, or market access activities. Its only objection is that it could spend its assessment dollars more profitably. See Lucas Dep. 60:23-61:14; 64:10-16; 65:19-66:5, May 17, 2005. To the extent Lucas Brothers objects to any of the Commission’s messages, it is principally an objection to the advertising of all California table grapes as opposed to his table grapes. See id. at 58:14-22, 59:9-21.

Plaintiffs dispute CUF No. 204 on the same grounds as set forth in connection with CUF No. 203. Plaintiffs add that the Commission misstates the deposition testimony of George Lucas:

CUF No. 206: Even though Delano Farms receives all of the reports and correspondence sent out by the Commission to growers explaining what the Commission is doing ..., Delano Farms has not raised any objection to the substance of any of the Commission’s nonadvertising activities. See Middleton Dep. 35:5-18; 81:8-84:10, 93:25-94:10. To the extent Delano Farms objects to any of the Commission’s messages, it is principally an objection to the advertising of all California table grapes as opposed to Delano Farms’s table grapes. See id. 40:19-25.

Plaintiffs dispute CUF No. 206, referring to Delano Farms responses to the Commission’s interrogatories, set no. 2:

As the Commission contends, Plaintiffs’ objections to the Commissions Statements of Undisputed Fact attack “the general message promoting all California table grapes, as opposed to grapes from a particular grower/shipper, that Plaintiffs attack — to the extent they attack a message delivered by the Commission at all.” Plaintiffs have raised no objection to the particular messages created by the Commission itself and do not dispute that the Commission has adhered to the Legislature’s instructions.

Plaintiffs further oppose this aspect of the Commission’s motion by asserting that the “Legislature setting the ‘overall message’ — forty years ago — is stated only in the loosest, vaguest and most general of terms that the private board of competitors that make up the Commission was to promote the sale of fresh grapes and to educate the public with respect to fresh grapes.”

Plaintiffs cite several Supreme Court cases which they describe as involving “federal or state regulations dictating what must be said, written or broadcast” and that “[tjhey were not government speech”.

Plaintiffs cite Thompson v. Western States Medical Center, 535 U.S. 357 , 122 S.Ct. 1497 , 152 L.Ed.2d 563 (2002), in which the Supreme Court held that the prohibitions in the Food and Drug Administration Modernization Act of 1997 on soliciting prescriptions for, and advertising, compounded drugs amount to uneonstitu tional restrictions on commercial speech under the Central Hudson test; Rubin v. Coors Brewing Co., 514 U.S. 476 , 115 S.Ct. 1585 , 131 L.Ed.2d 532 (1995), wherein the Supreme Court held that § 5(e)(2) of the Federal Alcohol Administration Act, prohibiting beer labels from displaying alcohol content violates the First Amendment’s protection of commercial speech under the Central Hudson test; Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781 , 108 S.Ct. 2667 , 101 L.Ed.2d 669 (1988), wherein the Supreme Court held that the North Carolina Charitable Solicitations Act, defining reasonable fees that a professional fundraiser may charge, providing that the professional fundraiser must disclose to potential donors the average percentage of gross receipts actually turned over to the charity, and providing that professional fundraisers may not solicit without an approved license, while volunteers may solicit upon submission of a license application, unconstitutionally infringed on freedom of speech; Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1 , 106 S.Ct. 903 , 89 L.Ed.2d 1 (1986), in which the Supreme Court held that the PUC’s ruling that envelope space in its monthly billing statements that PG & E had used to disseminate a newsletter that contained political editorials, feature stories on matters of public interest, tips on energy conservation and information about utility services and bills was extra space and the ratepayers’ property and permitted a group known as Toward Utility Rate Normalization to use the newsletter to raise funds and communicate with ratepayers with no limitation, except to state that its messages were not those of PG & E, impermissibly infringed on PG & E’s First Amendment right not to help spread a message with which it disagreed; and Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 , 94 S.Ct. 2831 , 41 L.Ed.2d 730 (1974), where the Supreme Court held that Florida’s “right of reply” statute granting a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper and making it a misdemeanor for the newspaper to fail to comply violates the First Amendment’s guarantee of a free press.

Plaintiffs only provide the citations and do not discuss the applicability of the holdings of these decisions or how any of these cases involves the issue of “government speech” nor compelled subsidies in the context of government speech. Plaintiffs further argue that the decision in Johanns was not that Congress set the overall message “because of the absolute weight the court expressly placed over the amount and degree of the government’s officious control over everything that was expressed to the public or concocted by the Beef Board.”

It cannot be disputed that the Commission’s programs are mandated by California statutes to implement and further the State’s economic and consumer protection purposes for the table grape industry as declared by the California legislature.

4. Commission is a Governmental Entity.

The Commission asserts that, even if it were necessary to show that the manner in which the Commission conveys the Legislature’s messages is “effectively controlled” by a governmental entity other than the Legislature, that test is satisfied here because the Commission itself is a “governmental entity” as a matter of California law. The Commission relies on Lebron v. National Railroad Passenger Corp., 513 U.S. 374 , 115 S.Ct. 961 , 130 L.Ed.2d 902 (1995), to define what entities are considered part of the government for purposes of the First Amendment.

In Lebrón, Lebrón created billboard displays that commented on public issues and filed suit claiming that the National Rail road Passenger Corporation (Amtrak) had violated his First Amendment rights by rejecting a display for an Amtrak billboard because of its political nature. The Supreme Court held:

513 U.S. at 400 , 115 S.Ct. 961 .

The Commission contends that the Supreme Court’s decision in Keller v. State Bar of California, 496 U.S. 1 , 110 S.Ct. 2228 , 110 L.Ed.2d 1 (1990), that the State Bar is not a government entity, is not controlling on this issue because 16 of the 22 members of the Board of Governors are directly elected by State Bar members, while, under the Ketchum Act, the Secretary of the CDFA appoints the entire Commission.

In Keller , the Supreme Court addressed whether the California State Bar is a governmental agency for purposes of the First Amendment under the United States Constitution. In ruling that it was not, the Supreme Court held:

496 U.S. at 11-18 , 110 S.Ct. 2228 .

Relying on Lebrón, the Commission contends that “the Court need not reach the issue decided in [Johanns ]■ — whether the Commission is a won-governmental entity that is nonetheless ‘answerable’ to a government official — because the State of California’s creation and control over the 'Commission through the appointment of its members makes the Commission part of the government for purposes of the First Amendment.” The Commission argues that it satisfies the Lebrón test for a government entity for purposes of the First Amendment because the Commission was created as a corporation by the California Legislature, Cal. Food & Agrie. Code §§ 65550-65551 , to further governmental objectives, citing Cal. Food & Agrie. Code § 65500 (h) (“The production and marketing of grapes produces in California for fresh human consumption is declared to be affected with a public interest” and that the Ketchum Act was enacted “in the exercise of the police power of th[e] state.”).

The Commission emphasizes that the Secretary of CDFA appoints every member of the Commission. See CaLFood & Agrie. Code §§ 65500, 65556, 65563, 65566, 65575.1. Commission members are nominated for appointment by table grape producers through an election process and a government official, the Secretary of the CDFA, makes appointments to the Commission from these nominees. The Commission maintains that this appointment process is no different from that in Lebrón where six of the corporation’s eight externally selected members are appointed by the President with the advice and consent of the Senate, with the statute restricting the President’s choices to persons suggested by certain organizations or persons with specified qualifications. Lebrón, id. at 897-398, 115 S.Ct. 961 . The Commission observes that members of the Commission may be removed by the Secretary of the CDFA. The Commission stresses that California Government Code § 11000(a) defines “state agency” to include commissions. Other California statutes treat commissions as state agencies, ie., Government Code § 11121(a) defines “state body” for purposes of the Bagley-Keene Open Meeting Act to include commissions created by statute; Government Code § 6252(f) defines “state agency” to include commissions for purposes of public record requirements; Government Code §§ 82048-82049 defines “state agency” to include commissions and “public officials” as “every member, officer, employee or consultant of a state ... agency” for purposes of the Political Reform Act of 1974. The Commission also refers to California Code of Civil Procedure § 995.220, providing that state agencies and public officials are not required to post a bond in a judicial proceeding.

The Commission argues that “[oversight by a different government agency is not required for a governmental entity’s speech to be considered government speech”. The Commission contends that Lebrón did not consider whether the government-appointed directors of Amtrak were subject to day-to-day oversight in concluding that Amtrak was a government entity.

Plaintiffs respond that the fact that the Commission is a state agency under California law does not compel the conclusion that the Commission’s program is “government speech”. Noting that the Supreme Court in Keller was not bound by the state’s determination of the governmental status of the State Bar for purposes of the First Amendment, Plaintiffs reiterate the Supreme Court’s conclusion that the State Bar was not a governmental entity for First Amendment purposes because it received no financial support from the State and argue that Johanns , in finding government speech, distinguished Keller : “There the state bar’s communicative activities to which the plaintiffs objected were not prescribed by law in their general outline and not developed under official government supervision.” Johanns, id., 544 U.S. at 562 , 125 S.Ct. 2055 . Plaintiffs argue that the Commission’s reliance on Lebrón for the proposition that the Supreme Court treated Amtrak as part of the government for purposes of the First Amendment is “extremely misleading”:

The Commission rejoins that Plaintiffs have not contested that two of Lebrón’s key elements are satisfied; that the Commission was created by the California Legislature as a corporation to further governmental objectives and that a governmental official appoints and can remove members of the Commission. The Commission argues:

In response to Plaintiffs’ contention that Keller controls the decision that the Commission is not a government entity for purposes of the First Amendment, the Commission argues that Keller’s analysis of the funding and membership of the State Bar was necessary only because the structure of the Bar was not determinative, contrary to Lebrón:

The Commission maintains that Johanns also suggests this result, because Johanns distinguished the Operating Committee, only half of whose members were appointed by the government, from the Beef Board, all of whose members were appointed by the Secretary of Agriculture pursuant to law.

The record and state and federal statutory schemes in this action undisputedly establish that the Commission is a governmental entity under California law. Plaintiffs’ motion for summary judgment on this issue is DENIED and the Commission’s motion for summary adjudication is GRANTED.

Although this decision makes inapplicable the Johanns issue of effective control, arguendo, the issue of effective control by the State over the Commission is addressed.

5. Effective Control.

Plaintiffs contend that the provisions of the Ketchum Act and the California Department of Food and Agriculture’s involvement “in the Commission’s speech, let alone activities, is not even arguably in the same ball park compared to the control over the make-up and communications of the Beef Board.” It follows, Plaintiffs argue, the Commission’s program is not “government speech” as that term is defined in Johanns and they are entitled to summary adjudication on this issue.

Plaintiffs assert that, in contrast to the Johanns facts:

1. Pursuant to § 65551, the Commission was created as a corporate body, with the power to sue and be sued, to contract, and to have all of the powers of a corporation. Plaintiffs contend that the Beef Board was not set up as a corporate body with the power to sue or be sued.

This distinction of corporate capacity between the Commission and the Beef Board has no bearing on the issue of “effective control” as Johanns discussed. Lebrón held that where “the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment.” 518 U.S. at 400, 115 S.Ct. 961 . A “ ‘government corporation’ means a corporation owned or controlled by the Government of the United States”, 5 U.S.C. § 103 (1), and “‘executive agency’ means ... a Government corporation ....” 5 U.S.C. § 105 . The California Pistachio Commission is subject to a virtually identical corporate provisions. See Cal. Food & Ag.Code § 69039.

2. Under § 65552, the Commission may appoint a manager, a treasurer and a secretary, the compensation of each officer shall be fixed by the Commission, and the officers serve at the pleasure of the Commission with such powers and duties as are delegated to them by the Commission. Plaintiffs note that there is no involvement by the California Secretary of Food and Agriculture in the appointment or compensation of Commission officers.

The Commission responds that “it does not appear that the Secretary of Agriculture appoints, removes, or sets the salaries of the staff of the Beef Board, the Beef Board’s Operating Committee, or the ‘established national nonprofit industry-governed organizations’ that actually implement the beef program designed by the Beef Board’s Operating Committee.” Members of the Beef Board and of the Operating Committee serve without compensation. 7 C.F.R. §§ 1260.148 ,1260.165.

The California Pistachio Commission is authorized, “subject to Sections 69032 and 69033”:

California Food & Agriculture Code § 69032 provides in pertinent part:

Pursuant to Section 69033, “[t]he commission or the secretary may bring an action for judicial relief from the secretary’s written notice, or from noncompliance by the commission with the written notice, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.”

There are no comparable provisions in the statutes regulating the Table Grape Commission. However, pursuant to Section 65650.5 “[a]ny person aggrieved by any action of the commission may appeal to the director.” Section 65572(f) provides for a State audit of the Commission’s books and records.

3. Under § 65570, all assessments collected by Commission are deposited in such banks as the Commission designates and are disbursed by order of the Commission. Plaintiffs refer to 7 U.S.C. § 2904 (7), which prescribes through the Beef Order require the Beef Board and its Operating Committee to:

The Commission argues that Plaintiffs’ attempt to distinguish the control by the USDA Secretary over the Beef Board bank accounts from the purported absence of control over the Table Grape Commission bank accounts by the CDFA Secretary is unavailing. The Commission references 7 U.S.C. § 2904 (9), which specifies that the Beef Order “shall provide that the Board, with the approval of the Secretary, may invest, pending disbursement, funds collected through assessments only in obligations of the United States or any agency thereof, in general obligations of any State or political subdivision thereof, in any interest-bearing account or certificate of deposit of a bank that is a member of the Federal Reserve System, or in obligations fully guaranteed as to principal and interest by the United States.” The Commission argues that “[ajlthough the Beef Board is required to obtain the Secretary of Agriculture’s approval, there is no indication that USDA controls the relevant bank accounts.” The Commission points out that Section 2904(7) merely requires the Beef Board to “account for the receipt and disbursement of all funds entrusted to them”. Here, the Commission contends, its funds are appropriated by the Legislature.

Whether the Commission’s funds are appropriated by the Legislature or derived from assessments is a contested fact; however, after Johanns this is not material. Plaintiffs focus on the absence of any prior approval or involvement by the CDFA Secretary in the investment and disbursement of Commission funds, as with the USDA Secretary’s role over the Beef Board’s funds. The statute governing the Pistachio Commission, Section 69043, is virtually identical to Section 65570. There is no discussion in Paramount Land Co., supra, 491 F.3d 1003 , that the statutory difference between regulation of investments by the Beef Board and those by the Pistachio Commission was of any importance. Further, Section 65572(f) requires the Commission:

4. Pursuant to § 65571, “[t]he State of California shall not be liable for the acts of the commission or its contracts” and “[p]ayment of all claims arising by reason of the administration of this chapter or acts of the commission shall be limited to the funds collected by the commission.” Plaintiffs assert that the United States Department of Agriculture would be liable for claims against the Beef Board.

The Commission responds that the State generally has sovereign immunity against damages claims, absent waiver of sovereign immunity. See Country Eggs, Inc. v. Kawamura, 129 Cal.App.4th 589 , 28 Cal.Rptr.3d 348 (2005). Further: “Plaintiffs do not explain how the State’s decision to permit suits against a single governmental entity, but to decline to waive its sovereign immunity in suits directed against the State as a whole, says anything about whether the Commission is a governmental entity. A state is free to define the scope of its own waiver of sovereign immunity.”

Plaintiffs cite Country Eggs, Inc. v. Ka-wamura, supra, where an egg handler paid assessments mandated by the California Egg Commission, Cal. Food & Ag. Code §§ 75001-75176 , for educational and promotional activities, which sought to avoid in a suit seeking to invalidate the statutory provisions as violative of federal constitutional rights. After a counterclaim to collect delinquent assessments was filed, Plaintiff entered into a stipulated order for dismissal and judgment against it and agreed to continue paying the assessments. Plaintiff then filed a state court action challenging the assessment scheme on state constitutional grounds. Although Plaintiff obtained a judgment for refund of its assessments, it was unable to collect the refund because the California Egg Commission had ceased operations and lacked funds to satisfy the judgment.

Plaintiff then sued the California Department of Agriculture for declaratory and injunctive relief, alleging that the State was liable for the debts of the Egg Commission because it allowed the Egg Commission to go out of business without requiring it to set aside sufficient funds to pay the judgment, and seeking a declaration that the state immunity provision in California Food & Agriculture Code § 75070, violated the due process provisions of the United States and California Constitutions. Citing Cal-Almond, Inc. v. U.S. Dept. of Agriculture, 67 F.3d 874 , 877-880 (9th Cir.1995), the state Court of Appeals held in pertinent part:

129 Cal.App.4th at 597 , 28 Cal.Rptr.3d 348 . The Court of Appeals then addressed Plaintiffs argument that Section 75070 does not apply because the Egg Commission was a state-created entity that provided a direct benefit to the State:

129 Cal.App.4th at 597-599 , 28 Cal.Rptr.3d 348 .

Section 69044 governing the Pistachio Commission is virtually identical to Section 65571. There is no discussion in Paramount Land Co., supra, 491 F.3d 1003 , that making the Pistachio Commission, as opposed to the State of California, liable for claims against the Pistachio Commission was a relevant factor in determining whether or not Johanns applied.

5. Pursuant to § 65600, an assessment upon all fresh grapes shipped during each marketing season “as fixed by the commission” shall be levied, but, during any marketing season, the assessment shall not exceed the amount specified in § 65600.

Section 69081 governing the Pistachio Commission is virtually identical to Section 65600.

6. Pursuant to § 65650, the Commission may bring an action in its name to redress violations “of this chapter or any rule or regulation.” Plaintiffs contend that the California Department of Food and Agriculture may not do so.

The Pistachio Commission also is accorded the right “to commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties, and for the obtaining of injunctive relief or specific performance, respecting this chapter and the rules and regulations adopted under this chapter.”

7. Pursuant to § 65650.5, any person aggrieved by any action of the Commission may appeal to the Secretary of Food and Agriculture, who shall review the record of the proceedings before the Commission and either dismiss the appeal or reverse the action of the Commission. “Any such decision of the director [sic] is subject to judicial review upon petition of the commission or any party aggrieved by the decision.”

Plaintiffs emphasize that this provision allows the Commission to sue the Secretary.

The statutory provisions governing the Pistachio Commission include Section 69062:

The Pistachio Commission theoretically can sue the Secretary as, theoretically, can the Table Grape Commission. Nothing in Paramount indicates that this possibility is of any relevance to “effective control” within the meaning of Johanns . Moreover, no waiver of sovereign immunity can be found, except if the legislature has clearly and unequivocally so provided.

8. Plaintiffs assert that there is no provision in the Ketchum Act for the Secretary to oversee, review, or approve/disapprove any of the Commission’s activities.

This is the biggest area of difference from the statutes governing the Pistachio Commission. Section 69051, which describes the powers and duties of the Pistachio Commission, provides that annual books and records be subject to an annual audit by an auditing firm selected by the Pistachio Commission “with the concurrence of the secretary”, that the audit be made part of an annual report to all producers, “copies of which shall also be submitted to the Legislature and the department”, and that, as the secretary deems necessary, the secretary may “conduct or cause to be conducted a fiscal and compliance audit of the commission”, § 69051(h); that the annual budget “shall be concurred in by the secretary prior to disbursement of funds”, except for disbursements made to pay employees of the Pistachio Commission, § 69051(p); and “[t]o submit to the secretary, for his or her concurrence, an annual statement of contemplated activities authorized under this chapter, including advertising, promotion, marketing research, and production research,” § 69051(g). In addition, Section 69041 provides that “[t]he secretary or the secretary’s representatives shall be notified and may attend each meeting of the commission, and any committee meeting of the commission.” Sections 69032 and 69033 grant the Secretary authority to correct Pistachio Commission acts deemed by the Secretary not to be in the public interest or in violation of the chapter and to enforce that determination by legal action.

There is nothing in the statutes governing the Table Grape Commission mirroring this type of oversight. However, Section 65650.5 provides for appeal to and review by the Secretary of any action by the Commission and subsequent judicial re view, and Section 65572(f) provides for a State audit of the Commission’s books and records. The Stipulated Undisputed Facts establish that the CDFA reviews any complaint to it about a Commission advertisement and can request that the Commission provide the CDFA with notices of meetings, minutes, contracts and copies of advertisements.

9. Plaintiffs focus on the following distinction in Table Grape Commission authority:

Plaintiffs’ contention does not undermine the fact that members of the Commission are appointed by the Secretary and that the Secretary has the authority to select those members.

Plaintiffs’ contention is incorrect. Section 65572(f) provides for a State audit of the Commission’s books and records.

The Department of Food and Agriculture responded “by stating that it possessed a document relating to possible legislative action, which CDFA considered exempt from the request, and the department possessed bills submitted to the Commission for payment of services rendered by the Marketing Branch to the Commission.” No other documents responsive to the request were produced.

Relying on these alleged distinctions, Plaintiffs argue that “[f]or the Commission to claim that CDFA provides ‘effective control’ over the Commission’s activities is to distort Johanns beyond recognition, and to trivialize the legislature’s obvious intent to provide the Commission with virtual unlimited autonomy not subject to CDFA control or review.”

The Commission responds that, although Johanns discussed the extensive oversight by the USDA of the beef program, nothing in the decision requires such a level of involvement for an agricultural entity’s published messages to be “government speech.” Because the Ketchum Act provides that the Secretary of the CDFA appoints and can remove all members of the Commission, because the CDFA can reverse an action of the Commission that it determines to be contrary to law or an abuse of discretion, and because the State audits the Commission’s books and records, the CDFA retains “effective control” over the Commission and, under Johanns , nothing more is required. The Commission argues that Johanns “as well as the Court’s other case law and general constitutional principles ... indicate that where the government has ‘set out the overarching message,’ and has established a regulatory framework that makes the speaking entity ‘answerable’ to a politically accountable official, the resulting speech is government speech regardless of whether the government micromanages the dissemination of the message.”

The Commission suggests the Johanns decision rejected the argument that the beef program did not qualify as government speech because it is funded by assessments rather than the general revenue. The Supreme Court distinguished those cases, pointing out that government speech is subject to democratic accountability: “[T]he beef advertisements are subject to political safeguards more than adequate to set them apart from private messages”, 544 U.S. at 563 , 125 S.Ct. 2055 . The Commission asserts that the reference to “more than adequate” safeguards “made clear its decision should not be understood to establish a blueprint that Congress or a state legislature must follow in every case to convey a ‘government message.”

Citing Southworth, supra, 529 U.S. at 235, 120 S.Ct. 1346 , that “[w]hen the government speaks, for instance to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political processes for its advocacy”, the Commission argues that this rationale also applies where the government uses a private entity to disseminate its message:

The Commission also cites Rust v. Sullivan, 500 U.S. 173 , 111 S.Ct. 1759 , 114 L.Ed.2d 233 (1991), and Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 , 120 S.Ct. 2266 , 147 L.Ed.2d 295 (2000) as Supreme Court precedent indicating that the government need not micromanage the dissemination of messages it has crafted. However, these cases do not involve the issue of “government speech” and do not constitute authority for the Commission’s position.

Finally, the Commission argues that requiring prior review and approval of the precise wording of all government speech would lead to “absurd results”:

Plaintiffs respond that the Commission’s argument that Johanns does not require the same degree of micromanagement before a finding of government speech may be found is “grasping at straws”:

Johanns addressed the degree of effective control without defining conditions that constitute the required degree of control before “government speech” in a compelled subsidy case is established. In Johanns , the Supreme Court described the facts before it, from which it found that control “more than adequate.” The inquiry does focus on the extent of the CDFA’s control over the Commission. Plaintiffs seek a rule that unless every procedure/requirement present in Johanns is here present, there is no “government speech.” In Paramount Land Co., supra, 491 F.3d at 1012 , the Ninth Circuit cautioned:

The statutory provisions governing the Commission, coupled with the Stipulated Undisputed Facts, demonstrate as a matter of law the CDFA has the effective control over the Commission required by Johanns .

Plaintiffs’ motion for partial summary judgment on the issue of effective control within the meaning of Johanns is DENIED; the Commission’s motion for summary judgment on this issue is GRANTED.

G. APPLICABILITY OF CENTRAL HUDSON TEST.

Assuming arguendo that Johanns does not apply, the Commission’s motion for summary judgment on the application of the Central Hudson test is addressed.

The Commission moves for summary judgment that the Ketchum Act is constitutional under the test described in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 , 100 S.Ct. 2343 , 65 L.Ed.2d 341 (1980), which the Commission characterizes as “intermediate scrutiny”. Plaintiffs move for summary adjudication that the Central Hudson test is not applicable in determining the constitutionality of the Ketchum Act under the First Amendment.

In Central Hudson, the Supreme Court discussed First Amendment restrictions on commercial speech, i.e., “expression related solely to the economic interests of the speaker and its audience.” 447 U.S. at 561 , 100 S.Ct. 2343 . Under Central Hudson, restrictions on lawful, non-misleading commercial speech are evaluated under a three-part test. First, the asserted government interest behind the restrictions must be substantial. Second, the restrictions must directly advance that interest. Third, the program must not be more extensive than necessary to serve that interest. Id., at 566 , 100 S.Ct. 2343 .

The Ninth Circuit’s Wileman Bros. & Elliott, Inc. v. Espy, 58 F.3d 1367 (9th Cir.1995), opinion analyzed the First Amendment challenge to the generic advertising program assessments promulgated the federal Marketing Order under the AMAA for nectarines, peaches and plums under the Central Hudson test and concluded that the program violated the First Amendment. In reversing the Ninth Circuit, the Supreme Court held in Glickman v. Wileman Brothers & Elliott, supra, 521 U.S. 457 , 117 S.Ct. 2130 , 138 L.Ed.2d 585 , that it was error for the Ninth Circuit to rely on Central Hudson for the purpose of testing the constitutionality of marketing order assessments for promotional advertising:

Id., at 474 n. 18, 117 S.Ct. 2130 . The Supreme Court held that application of the Central Hudson test “is inconsistent with the very nature and purpose of the collective action program at issue here”:

Id. at 475 , 117 S.Ct. 2130 .

The Commission argues that the Supreme Court in Glickman only reversed the Ninth Circuit because it concluded, under the circumstances of that case, that the Central Hudson analysis was too demanding because the generic advertising program did not implicate the First Amendment and, to the extent that it did, it was constitutional under the Abood germaneness test. In a case where the- First Amendment is implicated, the Commission argues, there is no reason to think that the Ninth Circuit will deviate from its original conclusion in Wileman Bros, that a program is constitutional if it passes intermediate scrutiny under Central Hudson. The Commission opines that the Supreme Court’s United Foods decision, supra, 533 U.S. 405 , 121 S.Ct. 2334 , 150 L.Ed.2d 438 , is not to the contrary because the Central Hudson test was not argued by the United States and was not before the Court. The Commission points to the California Supreme Court’s application of the Central Hudson test to a First Amendment challenge under the California Constitution to the California Plum Marketing Program issued by the Secretary of Food and Agriculture pursuant to the California Marketing Act of 1937. See Gerawan Farming, Inc. v. Kawamura, 33 Cal.4th 1 , 14 Cal. Rptr.3d 14 , 90 P.3d 1179 (2004):

33 Cal.4th at 20-22 , 14 Cal.Rptr.3d 14 , 90 P.3d 1179 .

Plaintiffs argue that the Commission is “clearly wrong” because the Supreme Court has never applied the Central Hudson test for commercial speech restrictions in a case involving compelled subsidies. While the Ninth Circuit utilized the Central Hudson test in Wileman Bros., Plaintiffs note that it did so before United Foods was decided by the Supreme Court. Since United Foods, Plaintiffs contend, the Ninth Circuit followed United Foods in Delano Farms Co. v. California Table Grape Com’n., supra, 318 F.3d 895 . Plaintiffs assert that the Supreme Court “applied the directly relevant line of authority, namely, Abood/Keller/United Foods line of cases addressing compelled subsidies of speech.” Plaintiffs further assert that cases since United Foods have refused to apply the Central Hudson test.

Plaintiffs cite In re Washington State Apple Advertising Commission, 257 F.Supp.2d 1290 (E.D.Wash.2003), where the District Court rejected the argument that the Central Hudson test applied:

257 F.Supp.2d at 1303-1304 .

Plaintiffs cite Michigan Pork Producers Association, Inc. v. Veneman, 348 F.3d 157, 163 (6th Cir.2003), reversed and remanded for further consideration in light of Johanns v. Livestock Marketing Association, 544 U.S. 550 , 125 S.Ct. 2055 , 161 L.Ed.2d 896 (2005), remanded to District Court:

In Cochran v. Veneman, 359 F.3d 263, 276-280 (3rd Cir.2004), judgment reversed and remanded for further consideration in light of Johanns v. Livestock Marketing Association, 544 U.S. 550 , 125 S.Ct. 2055 (2005), also cited by Plaintiffs, the Third Circuit, after discussion of Central Hudson and Abood, applied the germaneness test of Abood rather than the Central Hudson test. In Pelts & Skins, LLC v. Landreneau, 365 F.3d 423 , 434 n. 21 (5th Cir. 2004), judgment reversed and remanded for further consideration in light of Johanns v. Livestock Marketing Association, 544 U.S. 550 , 125 S.Ct. 2055 , 161 L.Ed.2d 896 (2005), remanded to District Court, 448 F.3d 743 (5th Cir.2006), the Fifth Circuit doubted that the Central Hudson test applied but choose to leave the question open because even if the Central Hudson test were applied, Louisiana’s alligator marketing program would not pass it.

These Circuit Court opinions are no longer valid authority; all were reversed and remanded by the Supreme Court based on Johanns . Following the Supreme Court’s reversal and remand, the Third Circuit in Cochran v. Veneman entered an Order affirming the judgment of the District Court for the Middle District of Pennsylvania, 252 F.Supp.2d 126 (M.D.Pa.2003), which the Third Circuit had previously reversed; upon remand by the Fifth Circuit to the District Court in Pelts & Skins, the District Court granted a Consent Motion to Dismiss All Claims Without Prejudice and did not affirmatively consider the impact of Johanns on the case; upon remand by the Sixth Circuit in Michigan Pork Producers, the District Court entered a Stipulation for Dismissal and did not affirmatively consider the impact of Johanns on the case.

The Commission’s assertion that Glickman rejected the Central Hudson test as “too demanding” finds no support in Glickman ’s majority opinion. It appears that the Commission bases this interpretation on the California Supreme Court’s reliance in Gerawan, id., 33 Cal.4th at 20-22 , 14 Cal.Rptr.3d 14 , 90 P.3d 1179 , on Justice Souter’s dissenting opinion. The majority opinion in Glickman clearly questioned the application of Central Hudson to First Amendment challenges in compelled subsidy cases and held that the Ninth Circuit erred in relying on Central Hudson . That the California Supreme Court reached a different conclusion relying on a dissenting opinion does not change the law and is not binding on a federal district court addressing the First Amendment to the United States Constitution. The Commission’s assertion that the Ninth Circuit will continue to apply Central Hudson is speculation unsupported by any case authority since Glickman , other than the California Supreme Court’s Gerawan decision.

The Commission contends that Central Hudson intermediate scrutiny is appropriate because the Ketchum Act only requires funding of commercial speech and the Ketchum Act satisfies the Central Hudson test. The cases discussed above support the view that Central Hudson simply does not apply.

Plaintiffs’ motion for summary judgment that the Central Hudson test is not applicable in determining the constitutionality of the Ketchum Act as it relates to the Table Grape Commission is GRANTED and the Commission’s motion that the Ketchum Act is constitutional under the Gentral Hudson test is DENIED. The Central Hudson test does not apply.

H. WHETHER GLICKMAN OR UNITED FOODS APPLIES.

If Johanns does not apply, Plaintiffs move for summary adjudication that the Supreme Court’s ruling in United States v. United Foods, Inc., supra, 533 U.S. 405 , 121 S.Ct. 2334 , 150 L.Ed.2d 438 , rather than the ruling in Glickman v. Wileman Brothers & Elliott, supra, 521 U.S. 457 , 117 S.Ct. 2130 , 138 L.Ed.2d 585 , governs the Ketchum Act. Plaintiffs contend that the Ninth Circuit’s Delano Farms v. California Table Grape Commission, supra, 318 F.3d 895 (9th Cir.2003), ruling is “law of the case” and that the undisputed facts in this action demonstrate that United Foods controls.

I. Glickman v. Wileman Brothers & Elliott.

In Glickman v. Wileman Brothers & Elliott, supra, 521 U.S. 457 , 117 S.Ct. 2130 , 138 L.Ed.2d 585 (1997), California tree-fruit growers, handlers and processors initiated administrative proceedings challenging the validity of various regulations contained in marketing orders promulgated by the United States Secretary of Agriculture under the Agricultural Marketing Act of 1937 (AMAA). The disputed orders assessed respondents for, inter alia, the cost of generic advertising of California nectarines, plums and peaches. After the Department of Agriculture upheld the generic advertising regulations, respondents sought judicial review. The district court found the orders lawful. The Ninth Circuit, relying on Central Hudson, supra, 447 U.S. 557 , 100 S.Ct. 2343 , 65 L.Ed.2d 341, held that the Government enforced contributions to pay for generic advertising violated respondents’ commercial speech rights. See Wileman Bros. & Elliott, Inc. v. Espy, supra, 58 F.3d 1367 . The question presented to the Supreme Court was “whether the requirement that respondents finance such generic advertising is a law ‘abridging the freedom of speech’ within the meaning of the First Amendment.” 521 U.S. at 460 — 461, 117 S.Ct. 2130 . The Supreme Court discussed the Ninth Circuit’s conclusion that Government enforced contributions to pay for generic advertising violated the First Amendment rights of the handlers:

521 U.S. at 465-466 , 117 S.Ct. 2130 . The Supreme Court left undisturbed respondents’ content-based challenge to the constitutionality of the generic advertising program, arising from their claimed disagreement with the content of some of the generic advertising. The Ninth Circuit did not rely on this claim in invalidating the advertising program; rather the generic advertising program was struck down “on the theory that the program could not survive Central Hudson because the Government had failed to prove that generic advertising was more effective than individual advertising in increasing consumer demand for California nectarines, plums, and peaches.” Id. at 467, 117 S.Ct. 2130 . The Supreme Court reasoned that the Ninth Circuit’s “holding did not depend at all on either the content of the advertising, or on the respondents’ claimed disagreement with any particular message” and that respondents’ arguments about their disagreement with particular messages, “while perhaps calling into question the administration of portions of the program, have no bearing on the validity of the entire program.” Id. at 467-468 , 117 S.Ct. 2130 . The Supreme Court then stated:

Id. at 468-469 , 117 S.Ct. 2130 . The Supreme Court held that three characteristics of the generic advertising program mandated by the marketing orders distinguished it from laws that have been found to abridge the freedom of speech protected by the First Amendment: “First, the marketing orders impose no restraint on the freedom of any producer to communicate any message to any audience. Second, they do not compel any person to engage in any actual or symbolic speech. Third, they do not compel the producers to endorse or to finance any political or ideological views.” Id. at 460-470 , 117 S.Ct. 2130 . The Supreme Court found the fact the marketing orders imposed no restraint on the freedom of any producer to communicate any message to any audience, “distinguishes the limits on commercial speech at issue in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557 , 100 S.Ct. 2343 , 65 L.Ed.2d 341 (1980), Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 , 96 S.Ct. 1817 , 48 L.Ed.2d 346 (1976), and 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 , 116 S.Ct. 1495 , 134 L.Ed.2d 711 (1996).” Id. at 469 n. 12, 117 S.Ct. 2130 .

The Supreme Court rejected the argument that the assessments for generic advertising impinge on First Amendment rights because they reduce the amount of money the producers have to conduct their own advertising, holding that “[t]he fact that an economic regulation may indirectly lead to a reduction in a handler’s individual advertising budget does not itself amount to a restriction on speech.” Id. at 470 , 117 S.Ct. 2130 . The Supreme Court noted that the Ninth Circuit had accepted the argument that the assessments infringe First Amendment rights because they constitute compelled speech, id. at 470 , 117 S.Ct. 2130 , but reversed by finding the assessments do not constitute compelled speech in violation of the First Amendment because “[t]he use of the assessments to pay for advertising does not require respondents to repeat an objectionable message out of their own mouths, ... [or] require them to use their own property to convey an antagonistic ideological message ..., [or] force them to respond to a hostile message when they “would prefer to remain silent,’ ... or require them to be publicly identified or associated with another’s message ... ”. Id. at 471 , 117 S.Ct. 2130 .

The Supreme Court addressed the Ninth Circuit’s reliance on Abood that the First Amendment prohibits compelling an individual to contribute financial support for another’s speech without sufficient justification by the government:

Id. at 471-472, 117 S.Ct. 2130 . The Supreme Court recognized cases that permit assessments to fund a lawful collective program “may sometimes be used to pay for speech over the objections of some members of the group”:

Id. at 478-474, 117 S.Ct. 2130 . In so holding, the Supreme Court noted:

Id., at 474 n. 18, 117 S.Ct. 2130 . The Supreme Court held that application of the Central Hudson test “is inconsistent with the very nature and purpose of the collective action program at issue here”:

Id. at 475, 117 S.Ct. 2130 .

2. United States v. United Foods, Inc.

In United States v. United Foods, Inc., 533 U.S. 405 , 121 S.Ct. 2334 , 150 L.Ed.2d 438 (2001), respondent challenged assessments used primarily to fund advertisements promoting mushroom sales pursuant to the Mushroom Promotion, Research, Consumer Information Act, 7 U.S.C. §§ 6101 et seq. The Act authorizes the Secretary of Agriculture to establish a Mushroom Council to pursue the statute’s goals. Mushroom producers and importers, as defined by the Act, submit nominations from among their group to the Secretary, who then designates Council membership. To fund its programs, the Act allows the Mushroom Council to impose mandatory assessments upon handlers of fresh mushrooms, which assessments can be used for “projects of mushroom promotion, research, consumer information, and industry information”. It was undisputed that most of the assessments were spent on generic advertising to promote mushroom sales. The district court granted summary judgment for the United States based on Glickman . The Sixth Circuit reversed, holding that Glickman did not control because the mandated payments were not part of a comprehensive statutory agricultural marketing program. The Supreme Court affirmed the Sixth Circuit’s decision that Glickman is not controlling. In so doing, the Supreme Court specified three issues that it was not addressing:

Id. at 409-410, 121 S.Ct. 2334 . The Supreme Court refused to address the Government’s contention that the advertising is government speech immune from First Amendment scrutiny under Lebron v. National Railroad Passenger Corporation, 513 U.S. 374 , 115 S.Ct. 961 , 130 L.Ed.2d 902 (1995) because the Government had not raised this argument below. Id. at 416-417 , 121 S.Ct. 2334 . In affirming the Sixth Circuit, the Supreme Court noted that the First Amendment may prevent the government from compelling individuals to express certain views, that “First Amendment concerns apply here because of the requirement that producers subsidize speech with which they disagree”, and that “the compelled funding for the advertising must pass First Amendment scrutiny.” Id., at 410-411 , 121 S.Ct. 2334 . The Supreme Court distinguished Glickman because “[t]he program sustained in Glickman differs from the one under review in a most fundamental respect”:

Id., at 411-412, 121 S.Ct. 2334 . The Supreme Court concluded:

Id., at 412-413, 121 S.Ct. 2334 . Although the mushroom generic advertising assessment only required the individual to sup-poi’t speech by others, the Supreme Court concluded that “the mandated support is contrary to Fúst Amendment principles set forth in cases involving expression by groups which include persons who object to the speech, but who, nevertheless, must remain members of the group by law or necessity”, citing Abood v. Detroit Bd. of Education, 431 U.S. 209 , 97 S.Ct. 1782 , 52 L.Ed.2d 261 (1977) and Keller v. State Bar of Cal., 496 U.S. 1 , 110 S.Ct. 2228 , 110 L.Ed.2d 1 (1990). The Supreme Court rejected the Government’s argument that, despite the lack of cooperative marketing, the Abood rule protecting against compelled speech is inapplicable:

Id., at 413-414, 121 S.Ct. 2334 . The Supreme Court held:

Id., at 413-416, 121 S.Ct. 2334 .

3. Delano Farms Co. v. California Table Grape Com’n.

In Delano Farms Co. v. California Table Grape Com’n., supra, 318 F.3d 895 , the Ninth Circuit, ruling on Plaintiffs’ appeal from the stipulated dismissal under Rule 12(b)(6) entered in this action, addressed as the only issue, whether the principle distinguishing Glickman and United Foods makes this case more like Glickman or more like United Foods. Id., at 896. The Ninth Circuit set forth the facts as follows:

Id., at 896-897. In reversing the stipulated dismissal, the Ninth Circuit, after describing the holdings in Glickman and United Foods , ruled:

Id., at 899-900.

The Delano Farms decision accepted as true allegations of the complaint about the table grape industry and Commission that have been amplified or disproved by the evidentiary submissions in this case.

4. Law of the Case.

Plaintiffs contend that the Ninth Circuit’s ruling in Delano Farms v. California Table Grape Commission controls resolution of this issue as it is “the law of the case,” arguing that “the Ninth Cir cuit — in this very case — stated that United Foods — NOT GLICKMAN — control [sic] the outcome of this case.”

“The law of the case doctrine is a judicial invention designed to aid in the efficient operation of court affairs.” Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 715 (9th Cir.1990). Under the doctrine, a court is generally-precluded from reconsidering an issue previously decided by the same court or a higher court in the identical case. Id. “For the doctrine to apply, the issue in question must have been ‘decided explicitly or by necessary implication in [the] previous disposition.” United States v. Lummi Indian, 235 F.3d 443 , 452 (9th Cir.2000). Application of the doctrine is discretionary. Id. A court abuses its discretion in applying the law of the case doctrine only if (1) the first decision was clearly erroneous; (2) an intervening change in the law occurred; (3) the evidence on remand was substantially different; (4) other changed circumstances exist; or (5) a manifest injustice would otherwise result. United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir.1998).

In the Order which denied Plaintiffs’ motion for judgment on the pleadings on this very issue, the trial court ruled in pertinent part:

Plaintiffs’ argument that the “law of the case” doctrine makes United Foods binding, irrespective of the facts, is without merit and has been previously rejected in the ruling on the motion for judgment on the pleadings.

Plaintiffs emphasize the following undisputed facts in contending that United Foods applies:

PUF No. 38: The Table Grape Commission has no authority to set the minimum prices nor the maximum prices that ship pers pay to producers. A shipper can sell its grapes for whatever price it wants and there are no state or federal regulations that control or regulate price.

Although the Commission contends that whether it has the authority to set minimum prices is a legal conclusion to which it need not respond, the Commission admits this fact with the clarification “that state and federal regulations do not impose any direct price controls on table grapes”. This fact is undisputed.

PUF No. 39: The state does not set any federal or state quantity restrictions on grapes to be produced or shipped in the San Joaquin Valley. There is no pro-rate for California table grapes. There are no federal marketing orders for table grapes produced in the San Joaquin Valley. The Ketchum Act has no quality, maturity or packaging requirements.

The Commission admits “with the clarification that there are no direct quantity restrictions on grape production and shipment”, but denies this fact “insofar as State maturity and quality regulations and federal export standards have the effect of limiting the quantity of table grapes produced and shipped in the United States.” The Commission’s denial relies on paragraphs 3-5 and 7 of the Declaration of James Pandol, a California table grape grower and marketer based in Delano, who avers in pertinent part:

Plaintiffs object to Mr. Pandol’s declaration, contending it “lacks foundation, is speculative, it is hearsay and conclusory as to what ‘other grower/shippers’ their business [sic]” and because it is irrelevant.

Plaintiffs’ objections are sustained to the extent that the rules (state and federal) are the best evidence of their content. Mr. Pandol may explain his understanding of how the rules apply to grape growers. The objections are sustained to how the rules and regulations are interpreted by others, but Mr. Pandol’s opinions are admissible to describe the effect the rules have on his growing, harvesting, shipping and marketing practices.

PUF No. W: There is no federal or state legislation, nor none in the Ketchum Act, that restricts the quantity of table grapes that can be sold. There is no law that forbids a shipper from dumping table grapes at a cheap price on the market. There are no federal or state regulations regarding price limitations for which a shipper can sell table grapes. The Table Grape Commission does not take title to grapes nor does the Table Grape Commission act as a cooperative in selling table grapes.

The Commission admits “with the clarification that antitrust and other laws may ‘forbid[ ] a shipper from dumping table grapes at a cheap price on the market’ and the further clarification that there are no direct quantity restrictions on grape sales or direct price controls for table grapes.” Again relying on Mr. Pandol’s declaration, the Commission denies the facts insofar as “state maturity and quality regulations and federal export standards have the effect of limiting the quantity of table grapes sold.”

PUF No. Jtl: The only regulation that the Ketchum Act has over the shipper is that the shipper is required to file reports regarding the sales of table grapes and to pay the assessments.

The Commission admits that the shippers are required to file reports and to pay assessments pursuant to the Ketchum Act, but denies “that they are the only regulations that could be imposed pursuant to the Ketchum Act.” This fact is disputed. [OWW ? ? ?]

PUF No. k2: The Commission has no authority to impose volume control on the production or shipment of table grapes. There is no authority to set minimum prices for what table grapes can be sold.

The Commission asserts that “[t]his is a legal contention to which the Commission need not respond.” The Commission’s opposition asserts that it has not moved for summary judgment on the “collectivization” issue, that there are issues of fact that preclude summary adjudication for Plaintiffs that United Foods rather than Glickman applies.

The Commission refers to state and federal regulations imposing restrictions on the growing and shipping of table grapes. The state regulations call for table grapes to be free from serious damage due to insects, mold, decay, freezing, and sunburn, Cal.Code.Regs. tit. 3 §§ 1436.18, 1436.24, define what constitutes “serious damage” in table grapes, id., § 1436.19, and require a specific percentage of grapes in a container or bulk lot to be free from serious damage, id., § 1436.20. Additional regulations impose minimum maturity requirements, id., §§ 1436.12, 1436.17, 1436.18, specifying the sampling and testing methods for maturity, id., §§ 1370.16, 1436.3, 1436.5, and set testing equipment standards, id., §§ 1436.6, 1437.7. Other regulations prohibit mislabeling of varieties, proscribe the use of particular variety designations, id., §§ 1436.30, 1436.31, 1436.42, and provide detailed specifications of what containers may be used, how they must be packed, how they must be closed, id., §§ 1436.37, 1436.38, 1380.19, and further requirements for grapes being shipped out of state, id., § 1436.

Federal regulations define grades for table grapes, 7 C.F.R. §§ 51.1880-51.913 , set the minimum standards for each grade, including requirements for berry size, maturity and firmness, bunch and stem characteristics, prohibited defects, and tolerances. Additional regulations impose quality, maturity and labeling requirements for grapes exported to foreign countries and require the shipper to obtain a certificate from the' USDA that the grapes meet quality and labeling requirements imposed by the regulations. 7 C.F.R. §§ 35.11 , 591. Federal statutory provisions and regulations govern fees for inspection and certification services, 7 U.S.C. § 595 , when inspections must occur, 7 C.F.R. § 35.12 , and the process for obtaining inspections and certifications, 7 C.F.R. §§ 51 .-4-51.61. Moreover, a federal marketing order governs grapes grown in southeastern California.

The Commission maintains that these state and federal laws and regulations have the “practical effect” of collectivizing the California table grape industry, contending that, in a number of respects, independent business activity has been displaced by collective action. The Commission asserts that, to understand this “practical effect”, the market for table grapes and the structure of the California table grape industry must be understood.

The Commission refers to the Undisputed Stipulated Facts that table grapes are not “branded” in the retail market and that consumers view table grapes as a commodity; that retailers do not typically indicate the name of the grower/shipper on store signage displaying grapes; and that, most of the time, grapes’ packaging does not reveal the grower/shippers’ name. The Commission also submits evidence that the majority of consumers do not know the names of the grower/shippers; nor the labels under which the grower/shippers sell their grapes to wholesalers and retailers; and do not shop for grapes in the retail market with brand names in mind. Further evidence shows Plaintiffs’ grapes are not branded at the consumer level and expert testimony based on a survey of primary grocery shoppers indicates that' consumers do not know the Plaintiffs’ “brand” names.

All of this evidence is said to demonstrate that consumers do not know the brands or labels of individual grape growers, “the fortunes of California table grape producers are inextricably bound together”:

This position is based primarily on the Pandol declaration.

Further evidence that the Ketehum Act collectivizes the table grape industry is found in the breadth of the Commission’s work, which reaches well beyond advertising and displaces individual firm activities in favor of collective activities. This includes the Commission’s work to develop and patent better varieties of table grapes; to discover and publicize the health benefits of table grapes; to initiate better cultural practices; to open new markets; and to improve grape storage and handling. The Commission undertakes these actions on behalf of all California table grape growers for their collective benefit. The Commission describes its patenting activities of new grape varieties, which are made available to growers on certain terms. The Commission develops protocols for shipping table grapes to various foreign countries, has a constraining effect on the table grape industry, which further serves to collectivize the table grape industry.

From the totality of the circumstances: “[t]he practical effect of the regulatory regime governing the table grape industry stands in stark contrast to the regime governing the mushroom industry at issue in United Foods . ” The Commission relies on Mr. Pandol’s declaration:

The Commission notes that the Supreme Court observed in United Foods that “[b]eyond the collection and disbursement of advertising funds, there are no marketing orders that regulate how mushrooms may be produced and sold, no exemption from the antitrust laws, and nothing preventing individual producers from making their own marketing decisions.” No federal regulations for mushroom grade standards have been issued. In United Foods , the government was only able to refer to the federal statute establishing the Mushroom Council, which authorized the Mushroom Council to develop voluntary standards, and to the AMAA, pursuant to which a marketing order governing mushrooms could have been, but was not promulgated. Almost all of the Mushroom Council’s activities were devoted to generic advertising; therefore, the Mushroom Council could not have displaced any significant aspect of independent business activity, comparable to the Commission’s non-advertising activities in the table grape industry.

Plaintiffs’ argument that the California table grape industry is not collectivized, rests largely on the fact that state and federal regulations do not directly regulate the price and volume of sales. The Commission counters that the absence of direct price and quantity regulation is not determinative, as the marketing order found constitutional in Glickman did not contain direct price or quantity restrictions and that, nonetheless, the Supreme Court concluded that California tree fruit was marketed “pursuant to detailed marketing orders that have displaced many aspects of independent business activity.” From this, the Commission argues, Plaintiffs’ motion for summary adjudication that United Foods controls, rather than Glickman , should be denied.

Plaintiffs respond that the regulations and statutes now relied on by the Commission were presented to the Ninth Circuit in Delano Farms , and the Ninth Circuit ruled that “[s]uch consumer protection and information regulations apply to much of the economy, and are far from rising to the level of the collectivization that controlled the result in Glickman . ” Plaintiffs object to Mr. Pandol’s averments as uninformed and irrelevant. Plaintiffs point to the Supreme Court’s note in Johanns, supra, 544 U.S. at 558 n. 3, 125 S.Ct. 2055 :

Plaintiffs emphasize that Ketchum Act has no maturity, quality, or packaging requirements and that producers of table grapes are not regulated by state or federal law concerning price, quantity, volume, or shipping quotas. Plaintiffs contend that as with the mushroom growers in United Foods , table grape producers “are not forced to associate as a group which makes cooperative decisions.” 533 U.S. at 413 , 121 S.Ct. 2334 .

Plaintiffs discount the Commission’s position that table grapes are not branded at the consumer level:

With regard to the Commission’s evidence and argument that its programs and activities reach well beyond advertising, Plaintiffs rejoin that all of those “demand-enhancing” activities, i.e., research, trade management, issues management, education and outreach, domestic marketing, are “all speech related programs, they are not the regulatory programs that have collectivized the industry or required the compelled association for non-speech related regulatory programs that United Foods ... would countenance.” Plaintiffs rely on a district court decision, In re Washington State Apple Advertising Com’n, supra, 257 F.Supp.2d at 1302 :

Like United Foods , the Apple Commission’s essential purpose is the advertisements and other marketing which it produces. In the years 1998-99 through 2001-02, the Commission spent between 62.5% of 85% of its budget expenditures were spent on ‘marketing’ activities ... Those same spreadsheets reflect that while not all of that budget is allocated to ‘consumer advertising,’ the vast majority of ‘marketing’ expenditures fits within four categories: (1) publications; (2) trade advertising; (3) consumer advertising (4) promotions. The Court finds that these constitute ‘speech’ for the purposes of analysis. Plaintiffs cite Pelts & Skins, LLC v. Landreneau, supra, 365 F.3d at 434 : We recognize that, unlike the assessments at issue in United Foods, Cochran, and Delano Farms , a majority of the alligator-related assessments fund programs other than generic marketing ... In each of the past several years, the Council has spent approximately 15% of the Resource Fund on generic marketing and the remainder on research and law enforcement. This distinction in the percentage of fees that go to generic marketing does not support applying Glickman to this case. The key element in Glickman—a highly collectivized marketing association—is still absent. The common thread uniting Abood, Keller, Glickman, and United Foods is that compelled subsidization of speech is permissible when individuals have been bound into a collective association ... The fees imposed here, though used for more than generic marketing, represent a collective association only in the loosest sense of that term.

Facially admissible evidence establishes greater industry collectivization than Plaintiffs’ acknowledge. Plaintiffs point to every minute fact describing the Commission’s activities and characterize each as speech. The undisputed facts show that more than 60% of the Commission’s activities do not involve speech or expressive activity.

Plaintiffs’ motion for partial summary judgment that United Foods rather than Glickman applies to the Commission’s statutory program is DENIED.

I. ABOOD’S “GERMANENESS” TEST.

If Johanns does not apply, the Commission moves for summary judgment that the Ketchum Act is constitutional under the “germaneness” test articulated in Abood v. Detroit Board of Education, supra, 431 U.S. 209 , 97 S.Ct. 1782 , 52 L.Ed.2d 261 . The Commission asserts that, even if the Ketchum Act is found to implicate the First Amendment, the Ket-chum Act is constitutional under the “ger-maneness” test because the Commission’s “advertising is germane to a broader program that serves important governmental interests and that is not related solely to speech.”

1. Applicability of Test.

The Commission argues that Glickman and United Foods “make clear that compelled funding of generic advertising undertaken by a commodity research and promotion program is constitutional under the Abood germaneness test if the advertising is germane to a broader program that serves an important governmental interest and that is broader than the advertising itself.” Plaintiffs respond that the Commission “erroneously conflates the Abood ‘germaneness’ test with Glickman , when the analysis must be under United Foods . ” Plaintiffs contend:

The Commission rejoins that Plaintiffs misread Glickman . First, the Supreme Court concluded that the generic advertising program at issue in Glickman did not implicate the First Amendment, 521 U.S. at 469-470, 474-476 , 117 S.Ct. 2130 , but that, even if the marketing orders did implicate the First Amendment, they were constitutional under Abood’s “germaneness” test, 521 U.S at 473, 117 S.Ct. 2130 . Second, United Foods held that the First Amendment was implicated because the mushroom industry was not “collectivized” as the tree fruit industry was in Glickman . The Supreme Court then considered the mushroom program under the Abood test, and concluded that “[t]he cooperative marketing structure relied upon by the majority of the Court in Glickman to sustain an ancillary assessment finds no corollary here; the expression respondent is required to support is not germane to a purpose related to an association independent from the speech itself; and the rationale of Abood extends to the party who objects to the compelled support for this speech.” 533 U.S. at 415 , 121 S.Ct. 2334 . The Commission replies:

The Commission’s interpretation of the Abood test is correct as the Commission’s purpose is economic enhancement of the table grape industry, consumer protection from enhanced research and development of new varieties of grapes, and facilitating the entry into and expansion of domestic and international markets for table grapes.

2. Satisfaction of Germaneness Test.

The Commission argues that the Ketchum Act is constitutional under the germaneness test because: (1) it created a broad industry program, of which advertising is just one part, that serves California’s important legislatively declared economic interest in expanding demand for California table grapes; and (2) the Commission’s advertising is germane to that broader program and interest.

a. Broad Program.

The Commission suggests that the Ketchum Act serves primarily an economic purpose of expanding demand for California table grapes worldwide, thereby strengthening California’s economy and improving the health and welfare of its citizens. The Commission contends that the Ketchum Act’s purpose is related principally to economic public welfare, not speech, and that California’s interests in strengthening its economy and improving the welfare and health of its citizens are indisputably important.

To support its contention that the program enacted by the Ketchum Act is much broader than advertising, the Commission references Cal.Food & Agrie. Code § 65572, which empowers the Commission in pertinent part:

Referring to evidence submitted in support of its motion for summary judgment, the Commission describes the various programs it has effectuated, ie., research, trade management, issues management, and education and outreach.

As to research, the Commission cites the Undisputed Stipulated Facts that it directs and oversees the funding, and provides direction in the implementation of viticulture research performed by scientists from research institutions such as the University of California, California State University, and the USDA, designed to increase grower efficiency and improve grape production and fruit quality, and resulting in creation of new varieties that account for approximately 45% of the California table grapes shipped to market. Evidence demonstrates additional research is conducted related to category management and consumer preference, which provides retailers with information about the value of selling California table grapes and how to increase sales, and with consumer research and data showing how an individual retailer’s sales of table grapes compare to sales by comparable retailers. The Commission also conducts research on international topics, such as production studies of foreign countries, transhipments, and consumer research. The Commission conducts a phytonutrient research program that analyzes the health benefits of table grapes, and has discovered links between the compounds in table grapes and the fighting or prevention of cancer, heart disease and degenerative nerve damage.

Plaintiffs respond that the research conducted by the Commission is less than 10% of its total budget based on the Commission’s budgets for crop years 1994-1995 to the present. Referring to Section 65572(k), Plaintiffs assert that the Commission is required to disseminate its research results and does so. Plaintiffs argue that research “is akin to gathering the news and gathering the news is only relevant if the information is disseminated and all is in the process of ‘speech’ or the press likewise protected by the First Amendment.” In so arguing, Plaintiffs cite Keyishian v. Board of Regents of University of State of N.Y., 385 U.S. 589, 603 , 87 S.Ct. 675 , 17 L.Ed.2d 629 (1967) (“[Academic] freedom is ... a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom”); Sweezy v. State of N.H. by Wyman, 354 U.S. 234, 250 , 77 S.Ct. 1203 , 1 L.Ed.2d 1311 (1957) (“Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die”); CBS, Inc. v. Smith, 681 F.Supp. 794, 802-803 (S.D.Fla.1988) (“The gathering of news of political consequence is a necessary corollary to the freedom to report about politics and government ... Simply put, news-gathering is a basic right protected by the First Amendment; ‘without some protection for seeking out the news, freedom of the press could be eviscerated.’ ”). Plaintiffs argue that research is “worthless” without dissemination. Further, the Commission’s research activities dealing with category management, consumer preference, and the health benefits of table grapes all “involve essential elements of speech because the information is provided to producers, shippers and ... retailers.”

The Commission responds that its 2004-2005 research activities accounted for 22% of its total expenditures and that Plaintiffs unsupported conclusion that research is always less than 10% of the Commission’s budget is wrong in the face of the undisputed evidence submitted by the Commission. The Commission asserts that its research activities are not “speech”, citing United States v. Frame, 885 F.2d 1119, 1131 (3d Cir.), cert. denied, 493 U.S. 1094 , 110 S.Ct. 1168 , 107 L.Ed.2d 1070 (1990) (“[T]he aspect of the Beef Promotion Act which imposes assessments for research purposes qualifies as neither ‘expressive’ nor ‘intimate’ association, and therefore does not implicate Frame’s first amendment rights”). The Commission argues that “[e]ven if Plaintiffs were right that the dissemination of research results implicates the First Amendment — which is not the case — the research itself nevertheless would not implicate the ‘compelled subsidy’ doctrine”.

For trade management, the Commission points to evidence of its efforts to increase sales of table grapes to domestic and international wholesalers. Domestically, the Commission works with retailers to increase the quantity of table grapes sold during the season; to increase the square footage of table grape display space and the number of varieties displayed; to improve the effectiveness of these displays; and to increase the number and effectiveness of table grape advertisements run by the retailers, including providing training to retailers’ produce staff for handling, storing and displaying table grapes. The Commission enters into promotional incentive agreements with wholesalers and retailers by which the Commission agrees to provide goods and services to a retailer if the retailer meets a target for total grape sales volume. The Commission encourages foodservice providers to increase their purchases of table grapes by developing recipes that it sends to foodservice providers; by contacting editors and writers of foodservice publications; and by retaining a registered dietician as a consultant.

In international trade management activities, the Commission has fifteen overseas representatives, who work directly with overseas retailers, importers and wholesalers, to provide grape storage, handling, and display information and monitor local markets in order to provide information that is sent twice a month during the California season to California table grape grower/shippers. The overseas’ representatives also organize activities such as in-store grape tastings and cooking demonstrations, and provide financial awards to retailers for grape promotional activities.

Plaintiffs argue that all the Commission’s trade management are “all speech”:

The Commission replies that its trade management activities “may involve people speaking, but none of it consists of public dissemination of messages to which Plaintiffs object.” The Commission is correct as the purpose of trade management is to assure enhanced and effective world-wide distribution, compliance with regulatory requirements of world-wide markets to assure access and participation, and remedial actions to address quarantine, embargos, and other governmental impediments to continued access into and participation in new and existing markets.

The Commission refers issues management, which entails the Commission’s work with interested parties and decisionmakers to keep trade flowing in the United States and internationally and to respond to issues that could impair the distribution of California table grapes and the economic strength of the industry. The Commission asserts that a significant portion of this work is related to gaining and maintaining access to international markets. The Commission’s evidence shows that it sponsored research and worked with the USDA and the Office of the U.S. Trade Representative (USTR) to negotiate and implement a shipping protocol with Australia that called for grapes to be inspected and fumigated; that it has helped to open markets for California table grapes in China and India; that it helped to keep the market in the United Kingdom open when U.K. retailers threatened to stop importation of California table grapes in 2002 following the discovery of a black widow spider in a shipment; and that it helped reverse a 2004 announcement by Thailand effectively banning three chemical by setting a zero tolerance on them, preventing the importation of California table grapes. The Commission also refers to evidence that it works with USDA and USTR to lower tariff and non-tariff barriers that impede the importation of California table grapes and that it has opened or improved access to California table grapes in a number of countries or regions.

The Commission describes its issue management work related to pesticides, pest exclusion, production, packaging, distribution and quarantine, such as monitoring chemical Maximum Residue Level restrictions to determine whether the MRL affects California table grapes, whether the proposed MRL is lower than U.S. or international standards, and whether the proposed MRL will disrupt shipments of California table grapes to the country in question. The Commission explains its patenting and licensing program pursuant to which the Commission has developed new varieties jointly with the USDA and licensed newly patented varieties, applied for intellectual property protection abroad, set the terms on which new varieties are available abroad, and enforced foreign intellectual property rights obtained.

Plaintiffs argue that all of the categories of activities identified as issues management, if done by a private person, would be fully protected by the First Amendment and “all fall within the category of ‘speech’ subject to United Foods and the Delano Farms Ninth Circuit decision.” This characterization is overbroad and unfair. The activities described may require communication, but not to advertise or promote, rather to address scientific and regulatory concerns.

On the subject of education and outreach, the Commission’s evidence shows that it provides education, training, analysis, and general information relating to California table grapes to retailers, wholesales, foodservice providers, grower/shippers, researchers, consumers, teachers, editors, authors, doctors and nutritionists.

Plaintiffs interpose the same argument, “that since neither the State nor Congress could prohibit Plaintiff [sic] from doing the same activity because it involves speech, it falls within the umbrella of United Foods ... that precludes compelled funding of the same activities.”

The Commission responds that its evidence establishes that of its broad range of activities, only one is advertising, and the others enhance demand for California table grapes, strengthen California’s economy, and improve the health and welfare of its citizens. For the 2004-2005 fiscal year, the four categories, i.e., research, trade management, issues management, and education and outreach, accounted for the following percentages of the Commission’s expenditures of assessments: 22% on research, 24% on trade management, 18% on issues management, and 10% on education and outreach. From this evidence it is evident that advertising has never been “almost all” of the Commission’s program, in contrast to United Foods, supra, 533 U.S. at 412 , 121 S.Ct. 2334 , where “almost all of the funds collected under the mandatory assessments are for one purpose: generic advertising”. The Commission contends that it is “just the sort of broad economic program to which Abood’s germaneness analysis applies.”

Plaintiffs cite Pelts & Skins, LLC v. Landreneau, supra; 365 F.3d at 434 and Michigan Pork Producers Ass’n., Inc. v. Veneman, supra, 348 F.3d at 163 to argue that the Commission’s research, trade management, issues management and education and outreach activities are “all speech related programs, not the regulatory programs that have collectivized the industry or required the compelled association for non-speech related regulatory programs that United Foods ... would countenance.” As stated above, these Circuit Court opinions no longer constitute valid authority, but more importantly Plaintiffs’ characterization of every Commission activity as speech is nothing more than argumentative legal conclusions, not supported by the facts.

Plaintiff also cite In re Washington State Apple Advertising Com’n, supra, 257 F.Supp.2d at 1302 :

The Commission argues the District Court opinion is unsupported by analysis and strays “from the proposition that a ‘compelled subsidy’ claims looks only to any publicly disseminated message with which the plaintiffs disagree.” The Commission cites Johanns, 544 U.S. at 557 , 125 S.Ct. 2055 (“[t]he reasoning of these compelled-speech cases has been carried over to certain instances in which individuals are compelled not to speak, but to subsidize a private message with which they disagree”), and interprets the Supreme Court holding that the First Amendment applies only in this context if the plaintiff actually objects to a message he is compelled to fund and it is not enough that a party object to funding an organization on the ground that free competition is preferable to socialism or that the organization does not use the funds effectively. The Commission argues that Plaintiffs do not object to any message conveyed by the overwhelming majority of the Commission’s work nor do many of the Commission’s activities convey any particular message to which Plaintiffs might possibly object. The Commission refers to Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 , 126 S.Ct. 1297 , 164 L.Ed.2d 156 (2006), that upheld a federal statute which required the Department of Defense to deny federal funding of colleges and universities that prohibited military representatives access to and assistance for recruiting purposes. A portion of the opinion addressed the argument that the statute constituted “compelled speech” because recruiting assistants provided by the schools often sent e-mails or posted notices on bulletin boards: “Compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto ‘Live Free or Die,’ and it trivializes the freedom protected by Barnette and Wooley to suggest that it is.” 547 U.S. at 62 , 126 S.Ct. 1297 .

The Commission also offers Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 529 , 111 S.Ct. 1950 , 114 L.Ed.2d 572 (1991) (“[Pjublic speech in support of the teaching profession generally is not sufficiently related to the union’s collective bargaining functions to justify compelling dissenting employees to support it”), as establishing that compelled funding of speech implicates the First Amendment only if it involves dissemination of a message. The Commission argues:

The Commission concludes that its “non-advertising activities form the broader, constitutionally permissible, program to which the Commission’s advertising can be germane.” The evidence establishes that advertising was only 25% of the Commission’s expenditures in 2004-2005 and has never been more that 50% of the assessment expenditures during the relevant time period.

The totality of the circumstances of the Commission’s industry activities are germane within the meaning of Abood to achieving the legislatively adopted economic objectives.

b. Germane to Commission’s Broad Program.

The Commission asserts it is entitled to summary judgment that its generic advertising is germane to the Commission’s broader demand-enhancement program under the Abood test, because all of its advertisements are designed to motivate consumers to buy more fresh California table grapes; that its advertisements have not promoted products other than California table grapes; that the Commission has not run political or ideological advertisements; that its advertisements have been in good taste and are not false or misleading; and that its advertisement have increased demand for California table grapes, which benefits the table grape industry, the California economy, and the health and welfare of its citizens. Finally, this advertising works in conjunction with its other non-speech activities, including the current advertising campaign that emphasizes grapes as a healthy snack alternative.

The totality to the circumstances of the Commission’s industry program are germane within the meaning of Abood to achieving the legislatively adopted economic objectives to advance, enhance, and protect the table grape industry and the greater economic well-being of California.

The Commission’s motion for summary judgment that the Ketchum Act is constitutional under the “germaneness” test articulated in Abood is GRANTED.

J. CONCLUSION.

For the reasons stated above:

1. Plaintiffs’ motion for partial summary judgment is DENIED and the Commission’s motion for summary judgment is GRANTED that the Table Grape Commis sion is a governmental entity that engages in government speech within the meaning of Johanns v. Livestock Marketing Ass’n., 544 U.S. 550 , 125 S.Ct. 2055 , 161 L.Ed.2d 896 (2005);

2. Plaintiffs’ motion for partial summary judgment is DENIED that the Table Grape Commission is governed by United States v. United Foods, 538 U.S. 405 , 121 S.Ct. 2334 , 150 L.Ed.2d 438 (2001);

3. Plaintiffs’ motion for partial summary judgment is GRANTED that the Central Hudson test, Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 , 100 S.Ct. 2343 , 65 L.Ed.2d 341 (1980), has no application to the resolution of Plaintiffs’ First Amendment challenge to the Ket-chum Act, and the Commission’s motion for summary judgment is DENIED;

4. The Commission’s motion for summary judgment is GRANTED that its activities are germane to valid legislative objectives within the meaning of Abood v. Detroit Board of Education, 431 U.S. 209 , 97 S.Ct. 1782 , 52 L.Ed.2d 261 (1977);

5. The Commission’s motion for partial summary judgment on the grounds that The Susan Neill Company lacks standing to obtain relief and the Lucas Brothers Partnership lacks standing to obtain prospective as opposed to past relief is GRANTED and Defendant’s motion for summary judgment on this issue is DENIED.

6. Counsel for the Commission shall prepare and lodge a form of order setting consistent with this Memorandum Decision within five (5) days following the date of service of this decision.

IT IS SO ORDERED.

. The other case was No. CV-F-96-6198 OWW/DLB and was consolidated with this case. . In this case, there is no attribution to Plaintiffs of any of the Commission’s advertising and promotions. Paramount makes much of the fact that in Johanns , the entire Beef Board was 'appointed' by the Secretary of Agriculture, but only one member of the Pistachio Commission is ‘appointed’ by the Secretary of the CDFA. This distinction, while accurate, is somewhat exaggerated. The Beef Board is appointed by the Secretary of Agriculture from among a list of candidates nominated by the trade association. 7 C.F.R. § 1260.141 (b). Both boards are dominated by industry appointees, not independent third party board members. Because we rest our analysis on Johanns , we decline to reach the district court's resolution of the compelled speech challenge under Glickman and United Foods. . The Commission also cites Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819 , 115 S.Ct. 2510 , 132 L.Ed.2d 700 (1995) and Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 , 120 S.Ct. 1346 , 146 L.Ed.2d 193 (2000) and asserts that "the [Supreme] Court gave no indication in [those decisions] that speech of a public university would be government speech only if some other government agency exercised oversight over the university.” Neither Rosenberger nor Southworth are helpful as these cases do not involve or discuss the issue of "governmental entity.” Both involve First Amendment protections to students who were compelled to pay fees to the universities to fund various activities. . The Secretary of Food and Agriculture was formerly known as the “director”. Cal.Food & Ag.Code § 50 provides that the term “director” means the Secretary of Food and Agriculture. See Cal.Jur.3rd, Agriculture, § 4. . The Court may take judicial notice of matters of public record, including duly recorded documents, and court records available to the public through the PACER system via the internet. See Fed.R.Evid. Rule 201(b); United States v. Howard, 381 F.3d 873, 876, fn. 1 (9th Cir.2004). . Plaintiffs cite Pork Producers Ass’n., Inc. v. Veneman, supra, 348 F.3d at 163. For the reasons stated above, this case no longer constilutes valid authority.