Cal-Almond Inc. v. U.S. Department of Agriculture

We must decide whether an almond marketing order violates the First Amendment by imposing mandatory assessments on individual almond handlers to fund collective generic almond promotion.

I

Cal-Almond, Inc., et al. (collectively “Cal-Almond”), are almond handlers subject to an almond marketing order (“Almond Order”) issued by the United States Department of Agriculture (“USDA”) pursuant to the Agricultural Marketing Agreement Act, 7 U.S.C. §§ 601 et seq. (“Act”). The Almond Order imposes assessments upon handlers based on the tonnage of almonds handled, and a substantial portion of the assessments is used to fund generic advertising, promotion, and marketing of almonds. The Almond Order affords almond handlers the option of directly advertising their own products in certain specified ways, for which they can receive credit against their assessments. More specifically, credit can be received for promotional activities, such as advertising directed at “end users, trade or industrial users,” 7 C.F.R. § 981.441 (e)(4)®, so long as “[t]he clear and evident purpose of each activity shall be to promote the sale, consumption or use of California almonds,” id. § 981.441(e)(2). Prior to…