U.S. high court rejects challenge on table grape ads

State-sponsored ads funded by California’s table grape growers — with slogans like “Good things come in bunches” and “California grapes. The natural snack” — have drawn legal objections from some leading suppliers, who say the commercials send the misleading message that all grapes are equal. But they’ll have to keep paying, because the U.S. Supreme Court has rejected their challenge.

On Monday, without comment, the court denied an appeal by five grape companies from a California Supreme Court ruling in May that said the advertising by the California Table Grape Commission, based on a

1967 state law, does not violate free-speech rights of growers who unwillingly subsidize the ads. Those growers contended they were being forced to sponsor messages they disagreed with, but the state court said the messages came from a state agency, which was free to determine its content.

It was the latest round in a long-running battle over advertising by the grape commission and other agencies promoting California agricultural products. Some major producers have argued that they shouldn’t have to subsidize ads that generally extol foods made in the state, because they consider their own products superior. But most of the rulings have found that the state exercised enough control over an agency that it could dictate the message without infringing on the rights of companies that paid the bills.

The table grape ads are subsidized by 475 growers. The suit was filed by five companies: Delano Farms, Four Star Fruit, Gerawan Farming, Bidart Bros. and Blanc Vineyards. Delano, based in Kern County, said the ad subsidies, at about 13 cents per box of grapes, have cost the company $600,000 a year since the 2000-01 crop season.

“We are disappointed that the court did not take this case, which involved the free speech rights of independent table grape producers, but we hope that at some point the law will be clarified and these unfair laws repealed,” said Michael McConnell, a lawyer for the five companies and a former federal appeals court judge.

In a filing seeking Supreme Court review, McConnell argued that the Table Grape Commission was an “industry group” empowered by state law “to force dissenting competitors to fund a collective advertising campaign that presents a point of view on the product with which the dissenters disagree.” He said the 22-member commission — 21 growers, chosen by state agriculture officials from candidates nominated by their fellow growers, and a single public member — is charged by law with “representing the interests of the industry, not the public.”

But California’s high court said the state has ultimate authority over the commission: the secretary of Food and Agriculture appoints its members and can remove them, the department can audit the commission’s records, and the overall message of the ads — symbolized in the commission’s logo, “Grapes from California” — was developed by the Legislature.

“The commission, as a public corporation, echoes and advances a viewpoint endorsed by the state” and is “subject to meaningful oversight by the public,” Chief Justice Tani Cantil-Sakauye said in the court’s 7-0 ruling, issued May 24. She said its messages were “government speech,” not the private speech of the growers.

The long-standing “government speech doctrine,” Cantil-Sakauye said, “recognizes that a properly functioning government must express potentially controversial viewpoints as a matter of course, and that payers of taxes and fees may be required to subsidize this speech, even when they disagree with it.”

The ruling became final when the nation’s high court denied review.

The case is Delano Farms vs. California Table Grape Commission, 18-300.