by Joey Schnide* 

Commodity checkoff boards, or quasi-governmental entities created by statute to research and promote agricultural commodities, are responsible for well-known advertising campaigns like “Got Milk?” and “Beef, it’s what’s for dinner.” Checkoff boards must have all advertisements pre-approved by the United States Department of Agriculture (“USDA”). When the USDA pre-approves commodity checkoff advertisements containing misleading claims, ordinary false-advertising remedies such as the Lanham Act and state torts cannot overcome the barriers to seeking relief imposed by doctrines of sovereign immunity and government speech. This Contribution argues that, to correct this accountability gap, courts should permit review of USDA’s approval decisions under the Administrative Procedure Act (“APA”). Since USDA approvals constitute final agency action and are thus reviewable under § 704 of the APA, producers who have been harmed by false or misleading advertisements should be able to seek judicial orders setting those approvals aside. Recognizing the permissibility of APA review would not unduly expand liability for commodity checkoff boards; rather, it would merely enforce limits Congress has already imposed through statute.

Commodity checkoff boards are quasi-governmental entities created by federal statute that promote demand for a specific agricultural commodity through research and advertising.1 Each commodity checkoff program is led by a research and promotion board.2 Although the boards are not formally government bodies, each one consists of members nominated by the industry and appointed by the Secretary of Agriculture, and are overseen by the United States Department of Agriculture’s (“USDA”) Agricultural Marketing Service (“AMS”).3 There are currently checkoff boards for 21 agricultural commodities, including beef, pork, lamb, eggs, dairy, and fluid milk.4

Checkoff boards use mandatory dues collected from producers to create and run advertisements promoting the commodity overseen by each board. These advertising campaigns are “famously effective”5 and include well-known campaigns such as “Got Milk?”6 and “Beef, it’s what’s for dinner.”7 Although the boards are industry-led, AMS still reviews and pre-approves all marketing communications.8 Indeed, most checkoff statutes expressly prohibit checkoff boards’ advertisements from including false or misleading claims.9

Nonetheless, claims alleging that checkoff boards are running false or misleading advertisements sit in a doctrinal no-man’s land. Congress and the USDA prohibit false or misleading promotional claims, yet the originating statutes for the checkoff programs provide no private right of action, and ordinary false-advertising suits are frequently blocked by the Yearsley contractor defense and government-speech doctrines. The Yearsley contractor defense allows government contractors to raise a merits defense that they were acting within validly conferred federal authority, while government speech doctrines allow checkoff boards to invoke sovereign immunity by attributing the ads to the government.10

Attempts to enforce statutory requirements by suing the checkoff boards often run into obstacles because the board will argue the suit is effectively targeting federally authorized conduct carried out under USDA control—and therefore shielded by the Yearsley contractor defense and sovereign immunity. The Supreme Court’s line of precedent originating in Yearsley v. W.A. Ross Construction recognizes a merits defense for private actors implementing federal directives when (1) the authority was “validly conferred” and (2) the actor stayed within that authority.11 The Court reaffirmed that principle in Campbell–Ewald Co. v. Gomez, explaining that contractors may be shielded unless they exceeded their authority or the authority was not validly conferred.12

In Johanns v. Livestock Marketing Association, the Court treated checkoff advertising messages as “government speech” because the USDA controls the content and approves the promotional campaigns.13 While Johanns is a First Amendment compelled-speech case, it is instructive for understanding how courts may apply the Yearsley defense to checkoff boards because it demonstrates that courts often view the conduct of checkoff boards as indistinguishable from government conduct.14 Johanns also shows how checkoff boards may invoke sovereign immunity in the alternative. If the content of the advertisements is really government speech, then suits challenging the speech must be brought against the government, which can invoke sovereign immunity.15

The Yearsley contractor defense and the government speech doctrine articulated in Johanns combine to create an enforcement problem—when a checkoff board publishes a misleading advertisement, there is no clear vehicle for review for consumers duped into buying the commodity or for competitors placed at a disadvantage. Courts should close this accountability gap by recognizing the Administrative Procedure Act (“APA”) as an appropriate vehicle for consumers and competitors of checkoff commodities to seek review of USDA’s approval decisions. When AMS approves a misleading advertisement, that approval is final agency action contrary to law and should be set aside under § 706 of the APA, which allows courts to prevent federal agencies from taking actions “not in accordance with law.”16

The result is a structural asymmetry: The more tightly USDA supervises and approves advertising content, the more insulated that content becomes from ordinary false-advertising review. In theory, the USDA protects consumers and competitors from false and misleading advertisements by requiring AMS approval before any communication can be released.17 In practice, the USDA often allows false and misleading advertisements to run. For example, Physicians Committee for Responsible Medicine filed a Federal Trade Commission (“FTC”) complaint against the dairy checkoff, alleging it disseminated ads that falsely claimed dairy caused weight loss.18 The dairy and fluid milk checkoffs have also made dubious claims that drinking skim milk after exercise can replenish electrolytes19 and that consuming dairy would allow video gamers to play longer because it’s “good for the brain.”20 All of these advertisements received USDA approval despite containing false or misleading information.

The APA supplies the best doctrinal mechanism for closing this accountability gap. At first glance, the argument for APA review appears straightforward. Section 702 of the APA waives sovereign immunity for relief other than money damages, which means that parties can seek injunctions against government agencies if their claims fall within the scope of the APA. § 706(2)(A) allows courts to review agency actions that are “not in accordance with law.”21 The implementing regulations of the commodity checkoff statutes prohibit the checkoff boards from making false or misleading statements and require the checkoff boards to submit “programs or projects” advertising the commodity to the USDA for approval.22 Approving a misleading advertisement is therefore a reviewable agency action “not in accordance with law” within the meaning of § 706(2)(A).23

The APA’s review provisions operate only in the absence of another adequate and exclusive review scheme.24 Because the checkoff statutes contain no private right of action and no special review scheme for challenging AMS approval of advertisements,25 the APA’s default review framework must govern. Despite its viability, this approach remains untested by plaintiffs.

There are two classes of plaintiffs who could bring an APA suit seeking review of the decision to approve misleading ads: consumers who bought products because of the misleading advertisements, and sellers of products competing with the advertised commodities. The following analysis will focus on claims brought by competitor plaintiffs, which have a stronger chance of securing effective remedies. Because the APA does not waive sovereign immunity for monetary damages,26 consumer plaintiffs will likely encounter a significant redressability issue. Courts will be skeptical that consumers will fall for the same false advertisement twice,27 defeating the value of injunctive relief, and theories that consumer plaintiffs will continue to be harmed by higher prices caused by misleading ads distorting the market are attenuated.

Two jurisdictional questions warrant attention on the viability of claims by competitors: standing and finality. Competitor plaintiffs must satisfy Article III and fall within the relevant checkoff statute’s zone of interests,28 and USDA’s approval must qualify as final agency action under § 704.29 Neither requirement bars APA review here.

Standing is a core component of Article III, which limits the exercise of judicial power to “cases” and “controversies.”30 To bring a case in federal court, parties must satisfy the elements of standing to show that they have a “case” or “controversy” the courts have the power to adjudicate. Article III has three elements: injury in fact, traceability, and redressability.31

Competitor plaintiffs satisfy each element of standing when USDA approval enables dissemination of misleading advertising that diverts consumer demand. The Supreme Court has repeatedly held that probable economic injury resulting from government action that alters competitive conditions suffices for Article III standing. In Lexmark International v. Static Control Systems, the Supreme Court held that a competitor has Article III standing to sue for a false-advertising injury if they are able to demonstrate that the deceptive advertisements caused consumers to withhold trade from the plaintiff.32 While Lexmark was a suit between private competitors, the Supreme Court has also found that “probable economic injury resulting from [government actions] that alter competitive conditions” establishes standing.33 Synthesizing these holdings, courts should find competitor standing if a plaintiff is able to demonstrate that the USDA’s decision to approve a misleading advertisement altered competitive conditions in a way that caused consumers to withhold trade from the plaintiff.

Competitor standing may be objectionable in circumstances where the plaintiff is not truly a competitor of the falsely advertised product. This goes directly to the plaintiff’s ability to demonstrate an injury-in-fact; if the plaintiff’s products do not compete with the falsely advertised product, then sales generated by the false advertisement don’t withhold sales of the plaintiff’s product. This leads to an intuitive objection to competitor standing for firms selling plant-based alternatives to animal products: These alternatives are not competitors at all and compete in a fundamentally different market.34 For example, beef producers may argue that most consumers purchasing plant-based burgers would never consider purchasing a beef burger instead. Lexmark suggests that the test for competition in false-advertising cases depends on actual consumer behavior (i.e. consumers withholding trade from the plaintiff as a result of the deceptive ads).35 Producers of plant-based alternatives have a strong argument that they compete in the same market as comparable animal products. Economic research has demonstrated that consumers may sometimes view plant-based milk and meat alternatives as substitutes for milk and meat, especially as the prices of plant-based alternatives fall.36 This is reflected in how plant-based alternatives are advertised37 and how checkoff boards advertise animal products.38

Where commodity checkoff boards produce misleading advertising, injuries to competitors are fairly traceable to USDA’s approval because the advertisement cannot run without that approval. The implementing regulations for the animal commodity checkoff programs are clear that the checkoff board must submit all “plans and projects” promoting the commodity to the Secretary of Agriculture for approval.39 The USDA’s guidelines for AMS oversight of the checkoff programs go further, stating that “[n]o marketing communications should/can be released prior to AMS approval.”40 For at least some checkoff programs, that means the USDA must pre-approve every word of every advertisement.41

Finally, the APA provides redress for competitors losing sales to deceptive advertisements. Under § 706(2), a court could “set aside” the USDA’s approval of the misleading ad, taking it off the air.42 Once the ad stops airing, the competitor will stop losing customers as a result of the checkoff board’s deceptive conduct. Recognizing competitor standing in this context ensures that federal approval decisions that reshape market conditions do not escape judicial scrutiny.

In addition to satisfying the three requirements of Article III standing, the Supreme Court has held that plaintiffs seeking APA review of an agency action must assert an interest “arguably within the zone of interests to be protected or regulated by the statute.”43 The Supreme Court has been clear the zone of interests test is “not meant to be especially demanding.”44 A plaintiff only needs to show that the interest they assert is “arguably within the zone of interests to be protected or regulated by the statute.”45 This is because Congress’s intent in enacting the APA was to make agency action “presumptively reviewable,” requiring that the plaintiff be given the benefit of the doubt.46 A plaintiff only fails the zone-of-interests test when their interests are “so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.”47 In Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, the Supreme Court looked beyond the plain text of the statute at issue to determine its zone of interests, considering the statute’s “context and purpose,” the Department of the Interior’s regulations, and the statute’s implementation in practice.48 Because Patchak instructs courts to look beyond statutory text to context, purpose, and regulatory implementation, the checkoff statutes’ false-advertising prohibitions and the USDA’s own reliance on FTC deception standards become relevant to defining the zone of interests.

A holistic and permissive review of the checkoff statutes suggests courts would find competitor injuries from misleading advertisements approved by the USDA to be arguably within the zone of the statutes’ interests. The checkoff statutes do not limit the harms of false advertisements to only injuries suffered by consumers. It would be surprising if they did—harm to competitors is one of the core concerns of statutes prohibiting false advertising.49 The FTC’s Policy Statement on Deception states that “[t]he Commission regards injury [from deceptive advertisements] to competitors as identical to injury to consumers.”50 The Policy Statement is particularly informative here because the USDA’s Marketing Communication Guidelines begins its section on interpreting and substantiating claims of misleading and deceptive advertisements by referring directly to Section 5 of the FTC Act, which prohibits misleading and deceptive advertisements, and the Policy Statement.51 Finally, there is precedent for courts accepting similar “pocketbook injuries” as the basis for challenging checkoff board decisions. In Humane Society of the U.S. v. Vilsack, the D.C. Circuit held that a pork producer had standing to sue the National Pork Board for buying a trademark from the National Pork Producers Council at an inflated value, reasoning that the producer was economically harmed because of a “failure to confer a direct economic benefit on a statutory beneficiary.”52

In opposition to these claims, the federal government will likely argue that each checkoff program only exists to promote the specific commodity named by the program, therefore excluding competitors selling other products and commodities from the zone of interests of a given checkoff statute. That reading is wrong. Congress did not authorize promotion at any cost; it paired promotional authority with explicit prohibitions on false or misleading claims.53 When Congress embeds deception limits into a promotional statute, it signals that truthful marketing—not unbounded competitive advantage—is the governing objective. The USDA’s Marketing Guidelines do not include any carve-outs to the FTC’s rules and policies around unfair advertisements; rather, they heavily rely on and defer to such rules.54 Courts should not construe statutory silence to override express prohibitions on misleading claims, given that they only need to make a broad threshold determination that harms to competitors are “arguably” within the zone of interests of the checkoff statutes. Competitor injuries flowing from misleading government-approved advertising are therefore at least “arguably” within the zone of interests the statute regulates.55

The government’s argument would be further weakened by the existence of prohibitions on disparaging other agricultural commodities (not restricted to those with their own checkoff) in both the generic checkoff statute56 and the USDA’s Marketing Guidelines.57 These prohibitions prevent checkoff boards from making subjective statements depicting other agricultural commodities or competing products “in a negative or unpleasant light.”58 Some advertising campaigns targeting competitors, such as the dairy checkoffs’ “wood milk” campaign targeting plant-based milks, run directly contrary to the prohibition on disparaging statements.59 Even when advertisements do not directly disparage other agricultural commodities, the existence of these prohibitions reinforces that the checkoff statutes are not intended to promote the named commodities at any cost.

Since competitor plaintiffs likely have standing, the only remaining potential objection to liability under the APA is that USDA approval is not final agency action.60 An agency action is final if it satisfies the two-part test laid out in Bennett v. Spear. First, the action “must mark the ‘consummation’ of the agency’s decision-making process.”61 Second, the action must determine either “legal rights or obligations” or be action from which “legal consequences will flow.”62

USDA approval satisfies both prongs of Bennett’s finality test. To satisfy the first step, an act must be “final,” as opposed to being of a “tentative or interlocutory nature” and represent the “consummation” of an agency’s “decisionmaking process.”63 A final “agency action” includes an “order”64 issued by the agency, defined as “the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing.”65 Courts have long taken a “pragmatic” view of what constitutes a final agency action.66 For example, the Supreme Court held in Bennett that a written Fish and Wildlife Service Biological Opinion explaining how a proposed action would affect an endangered species or its habitats constituted “final agency action.”67 Federal district courts in Massachusetts and Louisiana have held that agency actions ordering an indefinite pause on an activity pending further review can satisfy the finality requirement.68

AMS’s approval of a checkoff advertisement is a final agency action. The implementing regulations prohibit dissemination absent approval.69 The USDA Marketing Communication Guidelines classify AMS’s decision as the “final approval” of all marketing materials.70 This approval is only issued after the agency extensively reviews the proposed communication, analyzing at least nine factors and scrutinizing any health and nutrition claims made by the advertisement.71 Once AMS signs off, the board is legally authorized to run the campaign.72 That approval consummates the agency’s decision making process and alters the legal regime governing the board’s conduct. Treating such approvals as not final would insulate the very agency decisions from review that carry binding market consequences.

Agency actions that approve an activity create the kind of legal obligation that satisfies the second step of the Bennett test. The implementing regulations of the commodity checkoff statutes are clear that the boards cannot engage in promotion activities without approval from the Secretary of Agriculture.73 The Marketing Communications Guidelines reinforce this by stating that “[n]o communication materials or campaigns can be implemented prior to AMS approval.”74 It does not matter that the legal rights of the plaintiff competitors are not directly affected by AMS’s approval of the advertisements. In Bennett, the Supreme Court held that the Fish and Wildlife Service’s Biological Opinion was a final agency action, even though it only altered “the legal regime to which the agency is subject” and did not directly affect the rights of the plaintiff ranchers.75 The Court in Bennett distinguished the Biological Opinion from two earlier cases, where agency reports carried “no direct consequences” and were “in no way binding” on decisionmakers.76 Circuit courts applying Bennett have similarly focused on whether the agency action imposed binding obligations on someone, only rejecting agency memos and reports that were merely advisory.77 AMS’s decision to approve or reject an advertisement does not have this problem—it is a final agency decision that determines whether the commodity board is allowed to run the advertisement.

Recognizing APA review would not transform courts into advertising regulators or invite free-ranging challenges to commodity promotion; it would simply require the USDA to comply with the statutory limits on false advertisement that Congress imposed. When federal approval is a legal prerequisite to disseminating promotional campaigns, courts should ensure that approval complies with statutory prohibitions on deception. The modest holding urged here—that USDA’s approval decisions are reviewable and must comply with statutory truthfulness requirements—upholds, rather than expands, the rule of law.

* Joey Schnide is a J.D. Candidate (2026) at New York University School of Law. This Contribution reflects independent academic research and does not necessarily represent the views of any affiliated organization.

1. Checkoff Programs – An Overview, Nat’l Agric. L. Ctr., https://nationalaglawcenter.org/overview/checkoff/ (last visited Mar. 13, 2026).

2. Id.

3. Id.

4. See U.S. Dep’t of Agric, Agric. Mktg. Serv., Guidelines for AMS Oversight of Commodity Research and Promotion Programs (2020), 40–41 [hereinafter Guidelines for AMS Oversight] (listing checkoff programs); see generally Nat’l Agric. L. Ctr., supra note 1. This Contribution will focus on the six checkoffs for animal agriculture products.

5. Resolute Forest Prods., Inc. v. U.S. Dep’t of Agric., 130 F. Supp. 3d 81, 86 (D.D.C. 2015).

6. Noa Dalzell, “Got Milk?” A Closer Look at Dairy Checkoff Programs, New Roots Inst. (Apr. 29, 2021), https://www.newrootsinstitute.org/articles/dairy-checkoff-programs.

7. Resolute Forest Prods., 130 F. Supp. at 86.

8. Guidelines for AMS Oversight, supra note 4, at 21.

9. See Commodity Promotion, Research, and Information Act of 1996, 7 U.S. C. § 7414(d)(3); Dairy Production Stabilization Act of 1983, 7 U.S.C. § 4504(a); Dairy Promotion and Research Order, 7 C.F.R. pt. 1150.161; Fluid Milk Promotion Act of 1990, 7 U.S.C. § 6407(e); Fluid Milk Processor Promotion Order, 7 C.F.R. pt. 1160.301; Pork Promotion, Research, and Consumer Information Act of 1985, 7 U.S.C. § 4809(d); Pork Promotion, Research, and Consumer Information Order, 7 C.F.R. pt. 1230.60; Egg Research and Consumer Information Act of 1974, 7 U.S.C. § 2706(a); Egg Research and Promotion Order, 7 C.F.R. pt. 1250.341; Beef Promotion and Research Act, 7 U.S.C. §§ 2901–11 [hereinafter False Advertising Prohibitions]. The Beef Promotion and Research Act does not directly prohibit misleading advertisements, but the Act’s implementing regulations prohibit the Beef checkoff from “making use of any unfair or deceptive acts or practices.” See 7 U.S.C. §§ 2901–11 (lacking prohibitions on misleading advertisements); Beef Promotion and Research Order 7 C.F.R pt. 1260.169.

10. See Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 560–62 (2005) (holding that statements by the beef checkoff board were government speech and therefore exempt from First Amendment scrutiny); see generally College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) (holding that sovereign immunity barred a false advertising suit under the Lanham Act).

11. See Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 20–21 (1940), abrogated by GEO Group, Inc. v. Menocal, 146 S. Ct. 774, 784 (recharacterizing Yearsley as a “merits defense” rather than an immunity). The Court’s opinion in GEO Group did not change the substantive standard for applying Yearsley, so this doctrinal change is unlikely to change whether Yearsley shields checkoff boards from liability in practice.

12. Campbell–Ewald Co. v. Gomez, 577 U.S. 153, 166–67 (2016).

13. See Johanns, 544 U.S. at 560–62; see also Guidelines for AMS Oversight, supra note 4, at 61 (“Board speech is government speech. Therefore, Board speech should be consistent with USDA policies in all areas.”).

14. See Johanns, 544 U.S. at 560–62 (characterizing beef checkoff ads as government speech).

15. See College Sav. Bank, 527 U.S. at 675–76 (holding that sovereign immunity barred a false-advertising claim under the Lanham Act against a state entity).

16. See 5 U.S.C. § 706(2)(A) (establishing that a reviewing court will set aside agency action found to be “not in accordance with law”).

17. Guidelines for AMS Oversight, supra note 4, at 21.

18. Kim Severson, Dairy Council to End Ad Campaign That Linked Drinking Milk With Weight Loss, N.Y. Times (May 11, 2007), https://www.nytimes.com/2007/05/11/us/11milk.html.

19. See Switch4Good, Petition to Halt Misleading Advertising by MilkPEP, before the Fed. Trade Comm’n (Sept. 14, 2020), https://switch4good.org/wp-content/uploads/2020/12/2020-09-14_FTC-complaint-BWCM-claims-FINAL.docx.pdf (petitioning the FTC to address the fluid milk checkoff’s allegedly misleading advertisements claiming that drinking skim milk after exercising replenishes lost electrolytes better than sports drinks or water).

20. Beat the Lag!, Undeniably Dairy, https://www.usdairy.com/beat-the-lag (last visited July 13, 2021).

21. 5 U.S.C. §§ 702, 706(2)(A); see also F.C.C. v. NextWave Personal Commc’n, Inc., 537 U.S. 293, 300 (2003) (applying APA § 706(2)(A) and finding that “[t]he Administrative Procedure Act requires federal courts to set aside federal agency action that is ‘not in accordance with law’”); see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413–14 (1971) (same).

22. See False Advertising Prohibitions, supra note 9.

23. 5 U.S.C. § 706(2)(A).

24. Section 703 provides that the “form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action.” 5 U.S.C. § 703.

25. The only enforcement mechanism provided by the checkoff statutes channels civil actions through the Attorney General at the Secretary of Agriculture’s referral; none provides a private right of action or a special statutory review proceeding for challenging AMS advertising approvals. See 7 U.S.C. § 2908(c) (beef); 7 U.S.C. § 4510(a) (dairy); 7 U.S.C. § 6411(b) (fluid milk); 7 U.S.C. § 4815(a)(2) (pork); 7 U.S.C. § 2714(a) (eggs); 7 U.S.C. § 7107(b) (lamb); see also 7 U.S.C. § 7419 (generic Commodity Promotion, Research, and Information Act). These provisions authorize the Secretary to refer violations of the checkoff orders—such as failure to pay assessments—to the Attorney General for civil enforcement. They do not constitute “special statutory review proceeding[s]” that would displace APA review under 5 U.S.C. § 703.

26. See 5 U.S.C. § 702 (authorizing only actions against the United States “seeking relief other than money damages” while implicitly leaving sovereign immunity intact for actions against the United States seeking monetary damages).

27. See Berni v. Barilla S.p.A., 964 F.3d 141, 146–48 (2d Cir. 2020) (denying injunctive relief to a class of consumer plaintiffs in a false advertising suit because the plaintiffs would be unlikely to purchase the product again after being deceived the first time).

28. See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012) (quoting Ass’n of Data Processing Serv. Org. v. Camp, 397 U.S. 150, 153 (1970)).

29. 5 U.S.C. § 704.

30. See U.S. Const. art. III, § 2, cl. 1; see also Lujan v. Defs. Of Wildlife, 504 U.S. 555, 559–60 (1992) (explaining how Article III’s grant of the judicial power to “cases” and “controversies” is operationalized through the doctrine of standing).

31. Lujan, 504 U.S. at 560–61.

32. Lexmark Inter. Inc. v. Static Control Components, 572 U.S. 118, 133 (2014).

33. Clinton v. City of New York, 524 U.S. 417, 433–34 (1998) (quoting Kenneth Davis & Richard Pierce, Administrative Law Treatise 13–14 (3d ed. 1994)); see also Camp, 397 U.S. at 153–54 (holding competitors had standing where agency action permitted banks to enter their market; injury-in-fact satisfied by likely future profit loss from increased competition).

34. Cf. Adams v. Watson, 10 F.3d 915, 922 (1st Cir. 1993) (holding that out-of-state milk producers could challenge a Massachusetts Department of Food and Agriculture milk pricing order because they were direct competitors in the Massachusetts milk market).

35. Lexmark, 572 U.S. at 133 (“We thus hold that a plaintiff suing under § 1125(a) ordinarily must show economic or reputational injury flowing directly from the deception wrought by the defendant’s advertising; and that that occurs when deception of consumers causes them to withhold trade from the plaintiff.”).

36. See Steven Jahn, Daniel Guhl & Ainslee Erhard, Substitution Patterns and Price Response for Plant-Based Meat Alternatives, 121 Proc. Nat’l Acad. Sci. 1, 7 (2024), https://www.pnas.org/doi/10.1073/pnas.2319016121 (using economic modeling to demonstrate that beef burgers and plant-based alternatives may act as substitutes as plant-based meat prices decrease); see Oral Capps & Lingxiao Wang, US Household Demand System Analysis for Dairy Milk Products and Plant-Based Milk Alternatives, 3 J. Agric. & Applied Econ. Ass’n 655, 655 (2024) (finding plant-based milks are a substitute for both dairy and organic milk).

37. An FDA analysis found plant-based alternatives are “often marketed and sold as alternatives to conventional animal products.” Plant-Based Milk and Animal Food Alternatives, U.S. Food & Drug Admin., https://www.fda.gov/food/nutrition-food-labeling-and-critical-foods/plant-based-milk-and-animal-food-alternatives (last visited Feb. 16, 2025).

38. See Andrew Wimer, Embarrassing “Wood Milk” Campaign Shows Why Congress Must End Forced Farm Advertising, Forbes (May 8, 2023, at 11:37 ET), https://www.forbes.com/sites/instituteforjustice/2023/05/08/embarrassing-wood-milk-campaign-shows-why-congress-must-end-forced-farm-advertising (describing a fluid milk checkoff board advertising campaign allegedly disparaging competing plant-based milks as “wood milk”).

39. See Beef Promotion and Research Order, 7 C.F.R. § 1260.169 (requiring the Committee to submit all plans and projects for promotion to the Secretary for approval); Dairy Promotion and Research Order, 7 C.F.R. § 1150.140(e) (same); Pork Promotion, Research, and Consumer Information Order, 7 C.F.R. § 1230.60(a) (same); Egg Research and Promotion Order, 7 C.F.R. § 1250.341 (same); Fluid Milk Promotion Order, 7 C.F.R. § 1160.301(a) (same) [hereinafter Secretary Approval Orders]. The one exception is the Lamb Checkoff.

40. Guidelines for AMS Oversight, supra note 4, at 21.

41. Johanns, 544 U.S. at 551 (finding that “[t]he Secretary . . . has final approval authority over every word in every [beef checkoff] promotional campaign.”).

42. See 5 U.S.C. § 706(2)(A) (allowing a reviewing court to “set aside” agency actions “not in accordance with law”).

43. Patchak, 567 U.S. at 224 (quoting Camp, 397 U.S. at 153 (1970)).

44. Id. at 225 (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987)).

45. Id. at 224 (quoting Camp, 397 U.S. at 153) (emphasis added).

46. Id. at 225 (quoting Clarke, 479 U.S. at 399).

47. Id.

48. Id. at 225–26.

49. See Lexmark, 572 U.S. at 133 (establishing that deception causing a consumer to withhold business from a company is a harm sufficiently connected to false advertising statutes).

50. FTC Policy Statement on Deception, appended to Cliffdale Assocs., Inc., 103 F.T.C. 110, 191–92 n.58 (1984).

51. Guidelines for AMS Oversight, supra note 4, at 50.

52. Humane Society of the U.S. v. Vilsack, 797 F.3d 4, 7–8 (D.C. Cir. 2015).

53. See False Advertising Prohibitions, supra note 9 (listing false advertising prohibitions).

54. See Guidelines for AMS Oversight, supra note 4, at 44–50 (outlining FDA, FTC, and USDA statutory authorities that AMS will consider when evaluating materials).

55. See Patchak, 567 U.S. at 224–25 (quoting Camp, 397 U.S. at 153) (establishing that the word “arguably” is included in the zone of interest test to give the benefit of any doubt towards the plaintiff in establishing if a harm qualifies).

56. 7 U.S.C § 7414(d)(3).

57. Guidelines for AMS Oversight, supra note 4, at 59 (“AMS will not approve any advertising deemed disparaging to another agricultural commodity or competing product or in violation of the prohibition against false and misleading advertising.”).

58. Id.

59. Physicians Committee for Responsible Medicine, Complaint to Halt Unlawful “Wood Milk” Advertising Campaign, before the Office of Inspector General, U.S. Dep’t of Agric. (May 25, 2023), https://pcrm.widen.net/s/qdfrqfblbq/wood-milk-complaint.

60. See 5 U.S.C. § 704 (establishing that judicial review is reserved for either final agency action or agency action explicitly made reviewable by statute).

61. Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (quoting Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, (1948)).

62. Id. at 178 (quoting Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)).

63. See Bennett, 520 U.S. at 177–78.

64. 5 U.S.C. § 551(13).

65. 5 U.S.C. § 551(6).

66. U.S. Army Corps of Eng’r v. Hawkes Co., Inc., 578 U.S. 590, 591 (2016) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967)).

67. Bennett, 520 U.S. at 178.

68. See Louisiana v. Biden, 543 F. Supp.3d 388, 407 (W.D. La. 2021) (stating that even an interim pause can satisfy the first prong of finality, provided that an agency has ended the decision-making process); see also Massachusetts v. Trump, 790 F.Supp.3d 8, 27 (D. Mass. 2025) (finding an indefinite pause to be a de facto suspension of the law and thus, a final agency action).

69. See Secretary Approval Orders, supra note 39.

70. Guidelines for AMS Oversight, supra note 4, at 44; see also Hawkes, 578 U.S. at 591 (noting that the U.S. Army Corps describes jurisdictional determinations as a “final agency action”).

71. Guidelines for AMS Oversight, supra note 4, at 50–59 (evaluating claims such as food safety, environmental, and nutritional claims).

72. Guidelines for AMS Oversight, supra note 4, at 44.

73. See Secretary Approval Orders, supra note 39.

74. Guidelines for AMS Oversight, supra note 4, at 44.

75. Bennett, 520 U.S. at 178.

76. See id. (first discussing Franklin v. Massachusetts, 505 U.S. 788 (1992); then discussing Dalton v. Specter, 511 U.S. 462 (1994)).

77. See, e.g., California Communities Against Toxics v. E.P.A., 934 F.3d 627 (D.C. Cir. 2019) (holding that an agency memo that forecasted, but did not definitely announce, an agency’s interpretation of a statute was not a final agency action).