Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457, 43 (1997)

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Cite as: 521 U. S. 457 (1997)

Souter, J., dissenting

Nor does any explanation appear for restricting peach advertising programs to California produce. Without some explanation, one would expect something quite different, that a compelled advertising program of the National Government intended to increase consumer demand for an agricultural commodity would apply to produce grown throughout the land. Indeed, in recently enacting the FAIR Act, which authorizes compulsory advertising programs for all agricultural commodities on a national basis (but also leaves the separate provisions of the AMAA intact, see § 524, 110 Stat. 1047), Congress specifically found that "[t]he cooperative development, financing, and implementation of a coordinated national program of research, promotion, and information regarding agricultural commodities are necessary to maintain and expand existing markets and to develop new markets for these commodities." § 512(a)(7), id., at 1033 (emphasis added); see also § 514(a)(2), id., at 1035 ("Each order issued under this section shall be national in scope"). The AMAA, of course, actually prohibits orders of national scope. In sum, these advertising schemes come with a statutory text and regulatory history so remote from the Government's asserted interests as to undermine the reality, let alone the substantiality, of the claims put forward by the Secretary in attempting to satisfy Central Hudson's first requirement.

B

Even if the Secretary could establish a sufficiently substantial interest, he would need also to show how the compelled advertising programs directly advance that interest, that is, how the schemes actually contribute to stabilizing agricultural markets and maintaining farm income by stimulating consumer demand. To show this required causation, the Secretary relies on cases concerning governmental bans on particular advertising content, where we have accepted the unremarkable presumption that advertising actually works to increase consumer demand, so that limiting adver-

499

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