Tomorrow, April 22, the U.S. Supreme Court is scheduled to hear a case pitting two California raisin growers against the U.S. Department of Agriculture and the federal marketing order regulating raisins.

At issue is a provision of the California Raisin Marketing Order that allows the administrative committee of that order to take a percentage of raisins off the market each year.

The marketing order was established in 1949 when there were too many raisins being produced to be marketed economically. For years, a certain percentage of raisins was diverted from the domestic market and funneled into the export market or given away as part of school lunch programs. The committee, under power granted by the USDA and the Agricultural Marketing Agreement Act, established the percentage of raisins to be diverted and demanded that each handler send those raisins to a designated warehouse.

In 2001, raisin growers Marvin and Laura Horne established the Raisin Valley Marketing Association, which is a coalition of 61 raisin growers in Fresno and Madera counties. They declared that as producers, rather than handlers, they were not subject to the set-aside program and refused to participate. They were fined and thus began a litigation history that will conclude with tomorrow’s Supreme Court hearing.

Over the years, the case has been heard in several venues.  The current Supreme Court case revolves around the Hornes’ contention that its personal property has been removed in violation of the 5th Amendment’s “Takings Clause,” which declares that “private property” shall not “be taken for public use, without just compensation.”

Lower courts have ruled in several different ways, including ruling that the AMMA is constitutional and that the courts are not the correct path by which to change the provision.  

In June of 2013, the Supreme Court did send the case back to the Ninth Circuit Court of Appeal for a ruling with Justice Elena Kagan noting that that court should determine if the law was unconstitutional or just extremely outdated.   

The Ninth Circuit ultimately ruled that the “Takings Clause” does not apply to raisins, and even if it did, the government’s action of withholding raisins from the market was consistent with the AMMA’s intent and created just compensation for the raisins by raising the market price on the raisins that were allowed to be sold.

The Supreme Court agreed to hear this case earlier this year.  As is the custom, arguments will be presented tomorrow by both sides, with each side given 30 minutes for arguments and questions from the Justices. Typically, the Supreme Court will issue its ruling several months after the hearing.

In a closely related issue, earlier this month Sun Maid Raisins of California, the industry’s largest marketer of raisins, filed a complaint against the USDA and the set-aside provision in the Raisin Marketing Order. Though that provision has not been used for several years, Sun Maid said it petitioned the USDA to revoke the provision in November of 2014. The petition was denied.

In its recent complaint, Sun Maid argues that the very existence of the marketing order, and the potential for volume restrictions, “impedes growth, investment and reinvestment by raisin producers, even if such restrictions are not imposed."