(Sept. 20) A group of prominent citrus growers filed a lawsuit Sept. 12 challenging the constitutionality of the box taxes they pay to fund the juice advertising activities of the Lakeland-based Florida Department of Citrus.

Following the lead of successful challenges to similar mandated advertising programs in the mushroom and beef industries, the growers claim the taxes they must pay amounts to compelled speech and is a violation of their rights to free speech and freedom of association under the First Amendment.

Freedom not to speak: “The United States Supreme Court has made clear that freedom of speech includes the freedom not to speak as well as the freedom to say what you want to rather than what the government mandates,” said Steve Gold, the lawyer representing the growers.

The growers are Evans Properties, Graves Bros. Co. and Fellsmere Joint Venture, all of the Indian River district; Southern Gardens in southwest Florida; and Latt Maxcy in central Florida. Together, the growers produce more than 19 million boxes of citrus a year, or about 7% of the state’s total.

The lawsuit was filed against the Citrus Department, the state’s comptroller and the state’s treasurer, in Leon County Circuit Court in Tallahassee, Gold said, noting that if the suit is successful and other growers file claims, total refunds the state would have to pay growers could exceed $100 million.

While the fresh side of Florida’s citrus industry isn’t directly implicated in the suit, repercussions for fresh fruit marketers clearly exist. The majority of the department’s $64 million annual budget is funded by box taxes paid by taxes on fruit sent to processors, so a successful suit could result in a dramatically altered Citrus Department.

Just how much the fresh citrus industry could be affected remains unclear. While the lion’s share of the department’s advertising budget goes toward its generic orange juice advertising campaign, fresh promotions generally fall in the area of public relations.

CALLED UNFOUNDED

In a formal response to the lawsuit, the Citrus Department said it believes the complaint is “legally unfounded” and the refunds sought would have to come from the state’s general revenue fund, jeopardizing things like education and roads.

“The bottom line is this is a case filed by a few large growers who have long-term contracts with big processors and aren’t affected by the open market on a yearly basis,” the department said.

One citrus industry leader, who asked not to be identified, said large growers and their juice processors may not be as interested in increasing the overall market — the goal of the generic advertising campaign — as they are in boosting their own market share.

The mushroom case turned on a distinction Supreme Court justices made between that industry’s relative marketing autonomy and the more heavily regulated California stone fruit industry, which was covered by an earlier precedent that seemed to validate the constitutionality of generic advertising campaigns in the Glickman vs. Wileman Bros. & Elliot Inc. decision.

MUSHROOM SIMILARITY

Gold said the citrus lawsuit is more analogous to the mushroom challenge.

“In the Wileman case, the Supreme Court said it was an industry that was so controlled by regulations that it wasn’t controlled by the normal constraints of our free-market economy,” Gold said. “Our situation is much more like the mushroom case. The processed (citrus) industry is not collectivized.”

Dan Richey, president of Vero Beach-based Riverfront Groves Inc. and a member of the Florida Citrus Commission, the Citrus Department’s governing body, said generic advertising is just one element of the department’s mission, which also includes extensive regulatory and research matters.

The lawsuit “is a distraction,” he said. “It could cause some divisiveness. But what impact will it have on the rest of the department? Probably none. The process is going to take a while, and we’ll remain focused on the task at hand. We’re not stopping what we’re doing.”

Lindsay Raley, another Citrus Commission member and president of the Dundee Citrus Growers Association, said he believes the lawsuit potentially could have a big effect on Florida’s fresh industry.

“I’m obviously very disappointed,” Raley said. “The industry needs to be united. There are bigger issues to be concerned about, like trade and tariffs. It’s going to cost a lot to defend, but we’re going to continue the programs we have in place.”