Hettingas appeal to U.S. Supreme Court

Hein and Ellen Hettinga, central figures in a battle over a law regulating large milk producer-handlers, has asked the U.S. Supreme Court to hear their case. In a petition filed Oct. 19, the Arizona dairy owners asked the Supreme Court to hear key issues in their continuing constitutional fight against the Milk Regulatory Equity Act, contending it targeted them specifically. 

Most recently, the Washington D.C. Court of Appeals issued its decision on April 13, 2012, ruling against the Hettingas.

The Milk Regulatory Equity Act, signed into law in April 2006, amended the Agricultural Marketing Agreement Act of 1937 to ensure regulatory equity between and among dairy farmers and handlers for sales of packaged fluid milk in federal milk marketing order areas, and into certain non-federally regulated milk marketing areas from federal milk marketing areas. In June 2006, USDA issued rules eliminating the producer-handler exemption for firms that operate in the Arizona and Pacific Northwest Marketing Areas and sell more than 3 million lbs. of their own milk per month. In June 2010, USDA issued a final rule amending the producer-handler definition in all federal milk marketing orders.


A dairy coalition, including the National Milk Producers Federation (NMPF) and International Dairy Foods Association (IDFA), spearheaded regulation of large producer-handlers, ending their federal order Class I pooling exemptions. NMPF said that, because producer-handler milk was exempt from Class I pooling, it served to lower the milk price for all producers in an order. The regulations also closed another loophole allowing unregulated sales of milk from a federal milk marketing order region into a state order, an issue that was a major concern to California dairy producers.

The Hettingas are represented by attorneys with donor-supported Pacific Legal Foundation, a nonprofit watchdog organization that litigates for limited government and free enterprise in courts nationwide. PLF contends lower courts “let the federal government off without having to prove its case, and denied the Hettingas a chance to introduce evidence.”

“This case is about more than restrictions on dairies and other businesses,” explained Timothy Sandefur, a principal attorney with Pacific Legal Foundation, who represents the Hettingas. “This is about whether people challenging the constitutionality of any law can get a fair trial, or whether the government can just recite some magic words and make the case disappear.

“In lawsuits challenging business regulations, courts apply the ‘rational basis test,’” explained Sandefur. “The plaintiff must prove that the law is unreasonable. While that’s not an easy thing to prove, it can be done. What this decision does is change the ‘rational basis’ rule into a set of magic words that the government can use to get any case against it thrown out of court.”