Animal Law Podcast 108: The Case of Compelled Dairy Promotion

[00:00:05] Mariann Sullivan: I'm super excited about talking about this case. I swear I say this every month when I do these, but you know, I start looking at these cases and when I start looking at it, I'm like, Oh, that's terrible. And then by the time I'm done, I'm like, Oh my God, this is insane!

And this happened again this week. I've been wanting to talk about this case for a while and I think it's a really good moment to do it. The original centerpiece of this saga is this young woman, Marielle. So tell us a little bit about the story, who she is, and the Animal Awareness Club and where it was and all of that.

[00:00:36] Deborah Press: Well, Marielle Williamson graduated from high school last spring. She's an amazing, highly motivated, young, vegan activist. And I met her, she, because she was so active in advocacy that she kept popping up on the same meetings and seminars that I was on. And she was working in her school district, she was based in LA, trying to get more plant based options in her school and fighting to have more to eat, basically, in the cafeteria at school. We at PCRM had a campaign called the Truth or Dairy campaign.

[00:01:10] Mariann Sullivan: I have to interrupt you to say that's the best name ever.

[00:01:13] Deborah Press: Thank you. It's, yeah, it's cute. And the idea is that we wanted to combat all of the dairy propaganda that students like Marielle were seeing in their schools. And Marielle would tell us that her daily school announcements had milk advertising in them, you know, they would read the school menu for the day, and they would say, you're got milk menu for the day. Like, everything was so dairy coded and dairy sponsored, and they had posters everywhere, advertisements everywhere.

And so she wanted to participate in our campaign, which was to combat all of this dairy propaganda that students were seeing at school, by providing them with posters and literature and supporting tabling events. And so, we recruited some students to participate in these tabling events and we provided them with giveaways and literature. And Marielle and many other students actually, started to talk to their admins, their principals, to get permission to do these events at their schools.

Some students had no problem getting permission, but Marielle ran into some very unique obstacles and she was denied permission by her principal. Her desire was to disseminate information critical of the dairy industry. Her principal said, well, you can do that, but only if you also distribute this dairy promotion material at the same time.

So why did he do that? Well, there's a law, a very strange law, that's a part of the National School Lunch Program. We refer to it as the milk marketing restrictions. And this law says that schools that participate in the school lunch program shall not directly or indirectly restrict the sale or marketing of fluid milk products by the school or a person approved by the school at any time or place on the school premises or at any event.

Whoa! So what is that rule doing in the National School Lunch Program?

[00:03:01] Mariann Sullivan: Before we get into details of that, can we just take a step back a little bit and, you know, I know you live in the National School Lunch Program, and we all kind of think we know what it is, but reading this, I realized, I don't know very much about it. I just know that kids get school lunch and USDA is involved in some way.

Can you tell us a little bit more about how it operates and the relationship between USDA and your local school district and, like, what the incentives are, and all of that?

[00:03:28] Deborah Press: Yeah, thank you, and thanks for backing me up, because there are a lot of surprises in the school lunch program. This strange rule is just one of them. So the National School Lunch Program and actually the Child Nutrition Programs, are administered by USDA. You know, there's school lunch, there's school breakfast, and there are a handful of other programs for daycares and adult daycares.

And USDA administers a very intricate and complex set of rules that govern how we feed our students in schools. And those are nutrition rules. There is a very intricate set of nutrition guidelines about what's offered, and how much sodium and how much fiber, and all these different components that students have to be offered.

And USDA subsidizes the school lunch program. Almost every school, even private schools, accept the subsidy to support school meals. It's a vital source of funding for schools.

[00:04:25] Mariann Sullivan: They really cover it, right? I mean, it's a lot of money.

[00:04:28] Deborah Press: Yeah, you really can't feed students without it. You can't run a school without it, so it's this vital revenue source. So schools are very beholden to USDA to follow all these rules. The basics of the National School Lunch Program, they have to offer five components to students.

There's fruit, vegetable, grain, a protein, you know, all those things are sort of broad categories. The fifth component is fluid milk. So you've got these broad categories for meeting student nutrition, and then you just have dairy milk. Milk has to be offered at every school, for every school lunch.

So you already see, that sort of establishes this hold of the dairy industry in our schools. Why was Marielle seeing so much dairy propaganda at schools? Well, it's written into the law and the regulations. And it really has been since the beginning.

And I always like to point this out, you know, we think of our federal nutrition programs, like our school food programs and WIC, as nutrition programs, as social safety nets. But, oftentimes, they really do start as ways for USDA to help different commodity groups offload their products. And so, like with the school lunch program, we really don't see student welfare as the primary motivating factor for what is being fed to students and what's being offered.

[00:05:50] Mariann Sullivan: So the only thing in this food group is fluid cow's milk? That's it. Nothing could substitute, as if it stands on its own as this, like, amazing food that can't possibly be substituted for or compensated for. It's a wonder any of us are alive.

[00:06:08] Deborah Press: Yes, I mean, it holds this very sanctified position, and unfortunately it's written into law, it's codified, and so, it's very hard to change. There are a very complicated set of exceptions for students to get milk substitutes. You have to have a disability, and the rules do define lactose intolerance as a disability, but you can see how problematic it is.

Lactose intolerance is the state of most people in the world, and calling it a disability is stigmatizing. And of course there are lots of hurdles to get medical notes.

[00:06:43] Mariann Sullivan: So you have to get a note from a doctor in order to get out from being served milk?

[00:06:47] Deborah Press: You have to get a note from a medical professional to get a substitute to milk that's subsidized by USDA.

[00:06:54] Mariann Sullivan: Even water?

[00:06:55] Deborah Press: Well, so water has to be made available at all school meals.

[00:06:57] Mariann Sullivan: Oh my God, how reasonable they have to give them water.

[00:07:00] Deborah Press: And yeah, we can talk about that down the line, but the dairy industry has actually fought the water requirement.

Um, and we can talk about that later. It's insane. You know, young people aren't drinking fluid milk anymore and they're drinking bottled water. They're drinking coffee drinks instead. And their industry is scared that that market share is disappearing. And so they're going after water.

[00:07:21] Mariann Sullivan: Because it's gross.

[00:07:22] Deborah Press: Yeah.

[00:07:24] Mariann Sullivan: You know, I know some kids love milk and some kids hate milk. I was always a milk hater. I always thought it was gross.

[00:07:29] Deborah Press: I think, you know, the only milk that students are drinking is flavored milk. They just want the chocolate milk. You know, where they can actually taste it, but that's something else we heard a lot from students like Marielle is that most students are throwing it in the trash.

I don't want to get into too much detail, but the national school lunch program, it's mandatory that milk is offered. In middle schools and high schools, the students don't have to take it. The only thing they have to take is a fruit or a vegetable. But it's so confusing and the rules are so complicated that, like at Marielle's school, even though they're a high school, the cafeteria monitors would still say, no, you have to take that.

And so students would just frequently take the milk and just throw it in the trash. And it's the most wasted component of the school lunch by volume. I mean, it's just, it's so wasteful, but you know, that's not really a concern of the dairy industry.

[00:08:16] Mariann Sullivan: No, they're still getting paid for it. Yeah. Waste is the name of the game. All right. I know I led you far afield from the lawsuit.

[00:08:24] Deborah Press: No, it's all important.

[00:08:25] Mariann Sullivan: It's really good to have that background, but let's get back to Marielle. So there's this rule that says that a person approved by the school can't directly or indirectly restrict the sale or marketing of milk.

Not entirely clear what that means. And that becomes relevant as well. And she was told... it's kind of interesting because like, they kind of tried to split it down the middle. They didn't prohibit her from doing it. They tried to make it better, but then they actually said they were going to make her give out pro dairy information at the same time she's giving out her, the truth about dairy information, which of course she said no to. I assume she would have been subject to some kind of penalty if she hadn't. At least, I don't know whether it was spelled out, but she was told she had to do this, so that's normally the way that works.

[00:09:10] Deborah Press: Yeah, her principal, who had consulted the supervisor at the district level, you know, said this is the only way to do it. And honestly, you know, our intention isn't to go after the school district. Like, like you said, he was trying to split the difference. You know, Marielle informed the principal of this restriction and she really didn't want to run afoul of the law and get the school in trouble, you know, knowing how integral this lunch funding is to schools.

So, the principal, to his credit, tried to let her do her event, of course in a totally objectionable way to any real advocate, but, they did try, you know, and he was trying to do what he could within the confines of this very, very strange restriction. So, it, you know, it actually set us up for this lawsuit perfectly because it showed that this rule really does chill speech.

And not only does it chill speech, you know, he didn't just say, no, you can't do it, which we've had other administrators tell students that they couldn't do it because of the law, but this is viewpoint discrimination. The government can't tell you to advocate a certain perspective over another one. And that's exactly what he did.

[00:10:13] Mariann Sullivan: And she wasn't the only, you mentioned that in other schools around the country, students have been fine, but she certainly wasn't the only one, right?

[00:10:22] Deborah Press: Yeah. And I've been working with students for the past few years and, it takes a lot of things falling into place to actually have a lawsuit. So we have had plenty of students who've just been denied by their principals and didn't give any reason. It was very clear that the reason was this rule or, you know, them just not wanting to have to deal with it or think about it, but they didn't give any reason. And, you know, the principal just said, no, sorry, can't do that. So we can't sue. We can't show that this was a speech issue if the principal doesn't give us a reason.

We've had other administrators who have just completely explicitly said, no, we can't do that because of this law. And just to show, you know, one of the issues that we're facing in this case is a standing issue but so just to show that it really is linked, that is a cause and effect, that principals are saying no because of this law.

The principle that one student who is not a plaintiff, for various logistical reasons, also a complication of litigation is dealing with folks who are under 18, you need parents to be on board too, and that can be hard, for good reason.

But, this other student's principal said, no, we just started participating in this program, this USDA program that gives everybody free meals, regardless of income, you know, it's a non means tested free meals program and we don't want to do anything to jeopardize that. And so they were like truly afraid for... you know, they're a school where most of the students relied on free or reduced meals and they just didn't want to cross USDA.

So the student in that case, wasn't allowed to hang any posters critical of dairy in his school.

[00:12:01] Mariann Sullivan: And the dairy industry is itself quite entwined with this program, right? And busy finding out what's happening at different schools, at least according to your complaint.

[00:12:11] Deborah Press: And I'm sure that we only have scratched the surface of this. First of all, I mean, it's glaringly apparent. The secretary of agriculture has worked in the dairy industry in between his terms as secretary, but also prior. So there's a huge revolving door at USDA of dairy industry professionals.

And of course, we've got the sort of internal conflict of interest at USDA, which is their job is to administer all of these nutrition programs. But another part of their job is to promote commodities. So, that's another way that USDA is entwined with dairy. But, a FOIA request that we submitted prior to this case did show us a few examples of USDA hearing from dairy industry groups, dairy industry executives, and lobbying groups about some posters that were hanging in schools that said, if you don't want milk, don't take the milk.

And these were just posters. These weren't vegan activists. These were just probably school lunch personnel trying to reduce food waste, for many good reasons. And they shared these examples with USDA and USDA said, we'll take corrective action. And I think that that really was just most likely contacting the schools and telling them to take the posters down.

But there's obviously eyes in schools. I don't fully understand how they're hearing about this stuff, but they are in direct contact with uSDA about this.

[00:13:38] Mariann Sullivan: There was one, I don't remember the details, so I'm sorry if this is too unclear, but one where they kind of reported that a school was pushing water, like, encouraging kids to drink water, and they wanted that stopped.

[00:13:51] Deborah Press: Yeah. So the way we found out about all these cases in 2018, USDA issued a memo from headquarters directly to the local school's food service personnel that are located in every school district and county, and they said, don't push water on your students. And they cited this milk marketing restriction that we are challenging in this lawsuit.

And they said, basically be careful where you put water in the lunch line. Bottled water is not a part of the reimbursable meal. Students should not be discouraged to take milk and to take water instead. I'm paraphrasing, but this was a memo that USDA sent out and that was very much the tone.

Like just don't mess with milk. And, so we FOIA-ed, why did they send this memo out? This seems so nefarious. And we found out that the dairy industry wrote that memo and USDA published it essentially verbatim. You know, as I said before, they're trying to maintain this market share and the students are a captive market.

[00:14:53] Mariann Sullivan: Really a captive market. I keep thinking back to my, my grade school days of that not very cold carton of milk you would get with your Waverly Wafers. It's like so gross.

All right, we need to get back to the lawsuit though, because we're talking about the speech restraint. I mean, we've gotten a little bit of an overview of how much influence there is here, but we're talking about this speech restriction specifically.

How far does it potentially reach? What if somebody talked about dairy not in the cafeteria, but in a classroom? Is it conceivable that that would be a problem?

[00:15:25] Deborah Press: Well, that's a great question. We aren't challenging discussion of the curriculum in this case, but there was, we were working with a parent who was trying to start a vegan charter school once in Florida. And we asked that question and we, in a more informal way, we kind of asked for an advisory opinion from the state department.

And we know that they were in contact with USDA, but we were essentially told that you couldn't have critical information in the curriculum either. The state told us that and we believe is traceable to USDA. And when we do cite that in our case, as more evidence of just how this is so traceable to USDA, but I think that would be an interesting case.

That was sort of what we were trying to figure out. I think it's, there's an argument that this statute is so broad. I mean, overbreath is part of our argument here that it's so broad that it could arguably prevent lessons critical of dairy in the classroom and affect curriculum.

[00:16:17] Mariann Sullivan: Right. It could certainly create a chilling effect, that's not what the teacher has to bring up and they could decide not to just to avoid the problem.

[00:16:26] Deborah Press: Yeah, we would love to find a teacher who would want to make that challenge. That would be amazing.

[00:16:32] Mariann Sullivan: Yeah. All right. So, just to hammer this home, this is obvious by now, but of course, it's just the one side.

Schools are completely free to promote dairy as much as they want. Just nobody's allowed to unpromote it.

[00:16:45] Deborah Press: That's again, another kind of shocking element. There's so much dairy promotion in schools. The dairy industry is constantly running grant programs to students to push more milk and, and to cafeterias to sell more milk and take your school lunch serving of milk and put it in a coffee drink and you know, it will be subsidized by the school lunch program.

So there's so much marketing that goes on, and that this language is restricting this small minority of students who just want to speak out and make their school meals less cruel, less environmentally damaging, less racist, so it is kind of shocking how one sided the promotion is.

[00:17:24] Mariann Sullivan: It really is crazy. All right, so Marielle decides to sue, you decide to sue with her. Her parents are like, okay, I guess that's a hard piece of the, and also her club, I love that title animal awareness club that really, you know, like can bring in anybody. I like it when people come up with words like that rather than animal rights, which, you know, people will say, Oh, I'm not an animal rights person, but animal awareness.

So anyway, uh, I digress. So you all decide to get together and sue. So let's talk about the lawsuit. What court are you? You're in federal court, right?

[00:17:56] Deborah Press: Yeah, we're in California, in federal court in California. So we did this last May, we're in the central district of California, and last May, we sued not only USDA, but we sued LA USD, we sued her school district. And we knew we had a really strong case against the school district because she asked to do this event, they said no. And not only was that an unconstitutional restriction, but it also violated the district's own free speech policy and some state free speech policies. I'll say it again, just to defend the school district. They had a really good speech policy on the books that would have covered this kind of speech.

[00:18:37] Mariann Sullivan: Yeah, you can't help but feel a little sorry for the principal. I think he even apologized to her when he said, you know, like. It just felt like his hands were tied.

[00:18:44] Deborah Press: Yeah, exactly, I know, I do feel a lot of sympathy for them, and we ended up being able to partner with them after, ultimately, we did settle with LAUSD a few months after we filed this lawsuit. So, you know, they acknowledged Marielledid have the right to speak at school, and to criticize dairy at school, despite this federal law.

So, as I said, even though their speech policy had already encompassed this kind of speech, as part of the settlement, the speech policy now specifies that they can speak out against dairy at school. So that's at least in there for any other students going forward who want to have this event.

There's something they can point to. Hopefully other schools will pay attention to that in L. A. and in California. But, you know, we've seen enough principals, who obviously aren't going to know about that. Aren't going to care most likely. So, at least we were victorious on the lot with respect to LAUSD.

And as a part of our settlement, we did work with them. You know, we didn't want to punish the school district and we wanted to work with them and improve, the whole idea was to improve plant based offerings in the school. So we established a grant where they would do taste tests for plant based milk alternatives among students in schools.

But again, as you can imagine, this marketing restriction still makes it a little bit challenging to do much.

[00:20:08] Mariann Sullivan: They're not sure what their position is vis a vis USDA, right?

[00:20:13] Deborah Press: Yeah. And so, you know, they've acknowledged that they can't restrict her speech, but they're still not quite sure how they can market alternatives in the school. So they're doing these taste tests, to see how students like plant based alternatives to milk. You know, we had hoped to give away free plant based milk alternatives in the schools, and you can imagine that the school felt, again, the school district felt that its hands were tied, and then they couldn't do anything that... I don't want to call it bold because it just seems like such a simple...

[00:20:44] Mariann Sullivan: god, you're giving somebody free soy milk! It's outrageous!

[00:20:48] Deborah Press: But, they couldn't go there.

[00:20:50] Mariann Sullivan: But they are doing a lot and they are taking some risks because they really don't know what their position is vis a vis these USDA laws and rules. They're taking some steps in the right direction. Is that right?

[00:21:02] Deborah Press: Yeah. And, and I think we feel really good about the result and consider that a victory with LAUSD.

[00:21:07] Mariann Sullivan: What a great result from a lawsuit. You don't really hear that kind of positive result from too many lawsuits.

But of course, the lawsuit is not over because they were not the only defendant.

[00:21:17] Deborah Press: Yeah. I imagine that the majority of lawsuits that you hear about on your podcasts fail on standing.

[00:21:23] Mariann Sullivan: Oh, every single one. I mean, they do not like to get to the merits. Nobody in any of these cases, no matter whether it's the endangered species, no matter what the legal or factual setting is, if it's about animals, nobody wants to get to the merits.

All right, I want to take a moment before we get into the actual standing issues.

So, just to clarify that the plaintiffs who are left are the Animal Awareness Club, which is an ongoing entity at the high school, and PCRM, of course. And PCRM is suing both on its own behalf, and also on behalf of students around the country who are members of PCRM, is that right?

[00:22:02] Deborah Press: Our student members, and, you know, Marielle, she's a student member and a lot of the high school students I've been working with, are student members of PCRM. They're part of it.

[00:22:10] Mariann Sullivan: Marielleis totally out of the case though, right?

[00:22:13] Deborah Press: Well, yes, so that's part of the standing issue. We have a mootness issue because she's graduated.

[00:22:18] Mariann Sullivan: Yeah, I didn't mean to get you totally into the weeds yet, so, all right, we'll get to the situation of what Mariel's status is when we get like a little bit further but I want to get a few things under our belt first, before we get to that. So what relief are you seeking? You're seeking declaratory judgments?

[00:22:33] Deborah Press: We want this statute declared unconstitutional. We want, we want to wipe this law off the books.

[00:22:38] Mariann Sullivan: Right, and it's both a statute and pretty much an identical regulation that implements the statute, right?

[00:22:44] Deborah Press: Exactly. Yeah. And, it's sort of strange how it came into being. It was a regulation before it was a law, which is kind of backwards, but it's been around since the early 2000s, this law.

[00:22:55] Mariann Sullivan: Oh, I've definitely seen that happen before in the totally analogous situation, not the same situation, but keeping mice, rats and birds out of the Animal Welfare Act was a regulation long before it became a statute. And then when somebody challenged the regulation, they were like, oh, Congress do something, save us.

[00:23:10] Deborah Press: That's right. And it's so easy. It's, it's so easy for our opponents to get a law on the books while meanwhile, I mean, there's no way that we, I won't say there's no way, it would be very challenging for us to pass a law in Congress to get milk out of the National school Lunch Program.

[00:23:26] Mariann Sullivan: I think it's safe to say that would be challenging. All right. Your cause of action is under 42 U. S. 1983, and I imagine most of our listeners are familiar with it, but of course, it's the standard cause of action that is used when somebody feels their constitutional rights have been violated, and it gives them a cause of action to go into federal court if their constitutional rights have been violated by somebody operating under color of law, which obviously that's what's going on here.

So you've got a cause of action, but of course, standing remains an issue. And, you're basically, contending that the federal statute and the regulations are in violation of the First Amendment as we referenced before. Your big argument, I think, is viewpoint discrimination.

It seems pretty obvious what this is, what this means, but can you just play it out a little bit? Like, like, how are they discriminating vis a vis viewpoint?

[00:24:15] Deborah Press: Yeah. So, you know, the government can't promote one view over another. Here we've got Marielle who wants to speak out in school, critical of the dairy industry. And her principal is telling her that she has to present both sides of the equation. So, as we already said, there's a double standard.

The government can't require that you accompany speech with the opposing viewpoint. I mean, that's essentially what's happening.

[00:24:43] Mariann Sullivan: I know that there's, there's also this whole line of case law regarding the First Amendment rights of students.

Does that line of cases have a major impact in this case, or are the rights that you're talking about here still available to student populations?

You know, I think those limitations have to do with safety and things like that.

[00:25:01] Deborah Press: Yeah, there is a limitation on student speech and, you know, there's the famous quote that your constitutional rights don't end at the schoolhouse gates. There's a limitation on student speech. It can't be disruptive. There are certain time and place limitations on student speech, but this kind of speech that we're discussing, it's non disruptive.

It was peaceful, it was properly within a cafeteria in a place where students hold events. It was non disruptive. It was during lunch. It was not during like school hours. So it falls squarely within what is allowable speech in schools.

[00:25:37] Mariann Sullivan: Yeah, I think I remember they were specifically told they couldn't, in any way, get in the way of students entering the cafeteria and getting their lunch and whatever. And they said they would definitely not do that. They would not interrupt students lunch experience at all. And I guess I should say too, I don't remember whether it was in Marielle's case or one of the other issues, one of the other situations I read about, but these were, at least in some situations, these tabling events were kind of established for students to support a particular cause or whatever.

It wasn't just Marielle who wanted to do this. It was something that happened at the schools where kids wanted to, you know, talk about a particular issue or cause. Is that right?

[00:26:16] Deborah Press: Yeah, and in fact, Marielle had done one of these events already. A few months earlier, she had already done a tabling event. I think she worked with Oatly brand oat milk and had given out coupons, and asked her student body to take a survey about, you know, what they wanted in their school lunches.

And so she'd already done this. The difference here, is that before she asked to do the second event, she told the principal about this milk marketing restriction, this requirement that nobody interfere with milk marketing. He wasn't aware of it before, and why would he be? So that's the difference.

I mean, not only were other students doing regular tabling events, but Marielle was doing this tabling event. And, we cite in the case different examples, like, after a school shooting, there were students who were tabling about gun violence. And, one example of viewpoint discrimination we discussed in the case is, what if the school had said, well, okay, you can only educate the student body about gun violence, if you also give out these NRA flyers.

And that's sort of a grim analogy, but it is a good Illustration of what viewpoint discrimination is and what Marielle was being asked to do here.

[00:27:25] Mariann Sullivan: Yeah, and, you know, there was no indication that any student had wanted to do a pro dairy table, you know, they could have allowed a different student, they don't have to make Marielle. Or if another student wanted to do a gun rights table, I'm sure they would, you know, consider that application, like, in the same sense that they would consider a gun control, but making one student present both sides of the issue is really, I mean, well, it's compelled speech, which I know was originally a cause of action, but that got dropped when the case got settled.

You also argue that it's vague. This also seems like an obvious argument because I don't really understand what this statute means.

[00:28:03] Deborah Press: Yeah. Vagueness and over breath are two of our arguments also. And I totally agree. What is this law trying to do? And it, seems like Not only do schools not know, not only do principals not know, I don't think USDA knows, and I don't think the dairy industry knows.

And, and I think, that's why we see in our FOIA, we see dairy industry groups saying, Let's keep students away from the water because of this marketing restriction, which was cited in the memo that they sent out to schools. So they are sort of using it, but I think that USDA is not quite sure what this is about either.

And anytime we see a locality or a school confronted with this law, they throw their hands up and we know from other FOIAs, they run right to USDA and they say, what does this mean?

[00:28:52] Mariann Sullivan: So it's sort of, it stretches to fit whatever situation they want it to fit.

[00:28:56] Deborah Press: If you look back at the Federal Register and you look at the history of it, the initial explanation for this was that it was intended to prevent exclusive beverage contracts from keeping milk out of the school meal program. So you know how you go to a school and you see they only have Pepsi brand beverages, or they only have Coke brand, they explain it as, as the milk industry wanting to be sure that even though it's not Pepsi brand milk, they'll still be able to sell it in schools. So it just seems like they're talking out of all sides of their mouths on this one and don't really know what the purpose of this law is.

[00:29:28] Mariann Sullivan: That really explains one of the many reasons why they don't want to get to the merits and

they definitely don't want to get to the merits. So we're finally at the motion to dismiss, which

I think is still pending.

[00:29:36] Deborah Press: It's still pending.

[00:29:38] Mariann Sullivan: And they, of course, are arguing Article 3 standing because that's what they do.

So PCRM has two bases for standing and one is representational standing on behalf of other students. Is that right? And, the club is also still in the case, the club at this particular high school. As to the actions of the schools, you know, when a school is saying, you can't do this, the USDA is saying, well, you know, they may be injured, and this may be a cause, but we can't redress that because we don't have any control over these schools. Is that right?

[00:30:14] Deborah Press: That's what they're arguing, yeah. I mean, like you said, the remaining plaintiffs are our student members. So they say that it's not redressable, and our argument, you know, is that of course it's redressable. These schools would not be refusing student requests to speak out if it weren't for the fear of losing their USDA school lunch program.

And, you know, the case law that we say uses this phrase, coercive determinative effect. That even though it's the school who that's telling Marielle or these other students that they can't criticize dairy, they're doing it because of this coercive effect of receiving this National School Lunch Program funding and other funding USDA that makes them highly deferential to uSDA.

[00:31:01] Mariann Sullivan: Yeah, it just seems ridiculous that, of course, that if the USDA said you don't have to do this, they wouldn't do it.

[00:31:08] Deborah Press: Yeah,

[00:31:09] Mariann Sullivan: That's all USDA has to do. And of course, I should have said,I jumped d into this, and I think a lot of people understand, but Article 3 standing under the Constitution requires to get into federal court that you have to have injury, causation, and redressability.

And on this particular argument, they're arguing redressability. Like, oh, we're the USDA, what could we possibly do about what these schools are doing? I think that you're arguing that there could be possible enforcement action by the USDA and that would be an injury, if the USDA were to enforce it. And they're arguing it, like, they're saying, oh, no, I mean, it's just such a crazy argument. We don't enforce it, the schools enforce it.

[00:31:44] Deborah Press: Right. Even though there's a provision in the school lunch program that when you violate the provisions there, you can be fined. So, I mean, it is enforcible by USDA, it's written into the program.

[00:31:55] Mariann Sullivan: I mean, it is true that it doesn't really spell out how they're going to enforce it, right? But that shouldn't be necessary.

[00:32:02] Deborah Press: Yeah, I mean, while it is true, we don't have an example of USDA fining a school for violating this provision. We don't have like a smoking gun, I doubt that exists. I mean, but we have essentially a smoking gun because we have these emails between USDA and the dairy industry saying under this provision of the law, these posters shouldn't be allowed and USDA is saying we'll take corrective action. I mean, that shows us how USDA is having a direct effect on speech at school. So we think it's a pretty well established case for redressability. You know, if there weren't this coercive effect, you know, we've got principals fearing for their funding for free and reduced lunch.

It just seems beyond logical that they're having this determinative, coercive effect on schools and students. It might not be the punitive action that is laid out in the National School Lunch Program, but it's a punitive action, in general that the school is concerned with.

[00:33:00] Mariann Sullivan: I mean, when you put the whole argument together, I think it's just crazy that Congress can pass a statute and the USDA can pass an identical rule that actually prohibits speech, at least in the way it's being interpreted. And then they say, no one can sue them for violating the First Amendment because they haven't enforced it and they don't know how to enforce it themselves. And, even though the schools are doing the enforcement for them, what can we possibly do about that? Like, like, that's not our fault that the school is... it's so, like, when you put it all together, it's so cynical.

[00:33:32] Deborah Press: Yeah, they're very coy, aren't they? Yeah, it's pretty frustrating and another frustrating piece of it is, often as advocates and as attorneys who are advocates, we have to go at the problems kind of indirectly. PCRM is not a free speech organization, right?

We promote plant based advocacy. And, what we want is for students not to have unhealthy food in their school lunch program. We have had to go at it sideways to go after this speech issue. It raises awareness, it changes the conversation and it's important. But, you know, even if we were to get this rule scratched off the books as unconstitutional, we've done the awareness raising, but we still haven't gotten the dairy industry stranglehold off of schools. So it's very sobering that it's still even so difficult to even get something that seems so blatantly a constitutional violation, for USDA to take accountability for that.

[00:34:28] Mariann Sullivan: And that kind of keys right into your second standing argument that PCRM has organizational standing, that it can sue on its own behalf, that it is the one being injured. And that's basically kind of what you're saying, you've had to use your resources to do First Amendment work, which is not something you would have to do if they weren't violating the First Amendment.

Sounds like an injury to me.

[00:34:49] Deborah Press: This is something that we have to do all the time in this movement. I saw a great case last week, about a plaintiff going after her ability to speak out about animal experimentation on public platforms of like NIH and University platforms and being censored.

And so sometimes it's our only recourse and it's a good way to show how difficult it is to challenge the status quo at these big institutions. But you know, at the end of the day, PCRM wants to get more plant based food into cafeterias, and we want to teach students about, why milk can be so harmful to their health.

And Marielle just wanted to talk about animal cruelty and about the environmental concerns with the Dairy Industry and this statute is just one more roadblock that we have to face in achieving our mission.

[00:35:37] Mariann Sullivan: Yeah, absolutely. All right. So that takes care of the standing arguments, which you are waiting to have determined, but there's also this mootness argument and I had thought it was moot against Marielle, but you said you were like, that's not a slam dunk?

[00:35:49] Deborah Press: No, it is. And, California is such a special state. There is a law in California that does preserve certain constitutional cases that students have after graduation because, um, It's just so hard with the pace of the judicial system to maintain a cause of action with a high school student.

But, unfortunately that one we couldn't make use of in this federal, case against USDA. So, I think we did concede mootness with respect to Marielle.

[00:36:15] Mariann Sullivan: And you don't really need her in the case anymore. Because you still have the club and they're arguing that it's moot against the club. But, from what I understand, your argument is that the settlement agreement doesn't bind the USDA, so the USDA could still go after the club.

I mean, there's nothing stopping them from picking this up again and saying, well, I don't care whether your school is letting you do this. You're still breaking the law.

[00:36:39] Deborah Press: Right, and then there's the punishment that the students could face as well. So, it definitely becomes more challenging without Marielle, she's a star for many reasons, but we still think we have a fair shot.

[00:36:50] Mariann Sullivan: And, as you pointed out, you have students, even though they may not be parties, you have students who are members who are still struggling with this.

[00:36:58] Deborah Press: Yeah, and it's really is like a major time suck of our work to help these students figure out how to navigate this speech issue at their school. Honestly, they come to us to help figure out how to get more plant based food in the school.

And then they end up with this issue. And like I said, it's important. The speech issue speaks to so many more people, unfortunately, than a vegan nutrition argument or an animal cruelty issue. So it's been good. We've reached a lot of people talking about this, but it is really unfortunate that it's become such a diversion for so many students and for our work.

[00:37:31] Mariann Sullivan: And I, bet also, even though the speech issue does excite some people and get some people angry, there are other people probably who just tell their kids, just stay away from that. Don't get involved. You don't need that. You have to get into college.

[00:37:44] Deborah Press: Yeah, this is exactly what's happened. And I don't blame anybody for that because it's, it's a

complicated world. It's hard to be a student, and that's another reason I've just been so impressed with the students that I've worked with. I mean, Marielleis just a real star.

She can't be deterred, and so many of these students are just plugging away at their high schools, their colleges, and, it's really inspiring. It's been great to work with them.

[00:38:06] Mariann Sullivan: It really is. I guess next steps in the case totally depend on what happens with this motion, but assuming you're successful, do you expect to get discovery? That would be fun.

[00:38:17] Deborah Press: It would be fun. That's a really good question. I'm gonna just say optimistically yes, but I don't know. I don't really know. Honestly, I haven't thought that far ahead.

[00:38:26] Mariann Sullivan: Yeah.

[00:38:27] Deborah Press: I'm sure our, our outside council has thought about that quite a bit. I mean, we definitely know what we would ask for.

[00:38:33] Mariann Sullivan: Yeah, you could find out a lot. Absolutely. So that's in the hands of outside counsel, but speaking of the hands of PCRM, what are the next steps of the Truth or Dairy campaign? Just continuing to plug away, or do you have some new strategies?

[00:38:45] Deborah Press: We're continuing to work with students. You know, out of the woodwork of this case, we've learned about a lot of other schools, a lot of other interested folks who really, really would like to get dairy out of their schools. So we have a few ideas for other, other challenges, and we're certainly not, depending on how this one goes, I think we would potentially challenge this restriction again if we find other students who are continuing to face this challenge at school, I think we would continue to do it. Like I said, because it's so difficult to challenge these just entrenched, protected dairy industry laws, raising these issues and changing the conversation through litigation, even if we ultimately don't prevail, is still incredibly valuable. So, I think that if it doesn't work out this time, we're going to keep at it.

[00:39:34] Mariann Sullivan: Yeah. No, that's great. Because, uh, you know, as much as I know about this, I still am shocked when I hear about what the USDA does in schools, when I hear how hard they push milk at these kids, which I just think is just such a disgrace. And I'm sure other people are shocked as well. So, and this case got amazing press.

I mean, probably partially because Marielle was such a great advocate and a great interview but it's also just something that really interests people. So it has effects in ways beyond the legal issues. So thank you for doing it. Thank you for sharing it with us.

[00:40:04] Deborah Press: Thank you. Thanks so much for your interest.