I agree that, in determining whether a program that compels the funding of generic advertising violates article I, section 2, subdivision (a) of the California Constitution, courts should apply the intermediate scrutiny standard articulated by the United States Supreme Court in Central Hudson Gas & Elec. v. Public Serv. Comm’n (1980) 447 U.S. 557 [65 L.Ed.2d 341, 100 S.Ct. 2343], In this respect, I find persuasive Justice Souter’s discussion of the Central Hudson test in Glickman v. Wileman Brothers & Elliott, Inc. (1997) 521 U.S. 457, 491-505 [138 L.Ed.2d 585, 117 S.Ct. 2130] (dis. opn. of Souter, J.) (Glickman). I also agree that a “remand for further factfinding is required to determine whether the program at issue” satisfies the Central Hudson test and/or whether “the generic advertising in question is constitutional because it is government speech . . . .” (Maj. opn., ante, at p. 6.)
But I disagree with the majority’s decision to reaffirm our holding in Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468 [101 Cal.Rptr.2d 470, 12 P.3d 720] (Gerawan I) “that the marketing program in question does not *34violate the First Amendment” despite “the United States Supreme Court’s most recent pronouncement on the compelled funding of generic advertising in United States v. United Foods, Inc. (2001) 533 U.S. 405 [150 L.Ed.2d 438, 121 S.Ct. 2334] (United Foods).” (Maj. opn., ante, at pp. 6-7.) As an initial matter, I do not believe this issue is properly before us. Although we decided the federal constitutional issue in Gerawan I before the United States Supreme Court decided United Foods, neither party asked the Court of Appeal to revisit this issue on remand, and the court did not do so. Indeed, the Court of Appeal followed our instructions in Gerawan I, supra, 24 Cal.4th at page 517, by only considering whether the California Plum Marketing Program violated California’s free speech clause. The parties did discuss United Foods in the course of addressing the proper standard under California’s free speech clause. But, once the majority declined to adopt the United Foods standard as the standard under the California Constitution (see maj. opn., ante, at pp. 20-21), it had no further need to apply it to this case. I therefore see no reason for us to reach out and decide an issue that our Courts of Appeal have not had an opportunity to fully address.
Moreover, the United States Supreme Court has recently decided to revisit the issue of whether the compelled funding of generic advertising violates the First Amendment. (See Veneman v. Livestock Marketing Ass’n (May 24, 2004, No. 03-1164) 541 U.S. 1062 [158 L.Ed.2d 962, 124 S.Ct. 2389].) Thus, any decision we render will likely be moot within a year. In any event, the high court presumably granted the petition for writ of certiorari because the federal Courts of Appeals have apparently recognized “at least four variations” of the federal constitutional “standard for determining the validity of laws compelling commercial speech” since United Foods. (Cochran v. Veneman (3d Cir. 2004) 359 F.3d 263, 277.) Given this confusion over the proper standard under the federal Constitution, I see no reason to wade into this thicket where, as here, the United States Supreme Court will resolve it shortly and the resolution of the state constitutional question may render the federal constitutional question moot.
If, however, we must address the federal constitutional issue, I do not believe we can simply rely on our analysis in Gerawan I in concluding that the California Plum Marketing Program is constitutional. In my view, United Foods—which focuses on the actual extent of regulation in the relevant market—casts doubt on our reasoning in Gerawan I. As such, I believe that a remand for further factfinding is also necessary in order to determine whether the program violates the First Amendment.
In resolving the federal constitutional issue in Gerawan I, we compared the California Plum Marketing Program and its enabling statute—the California Marketing Act of 1937 (CMA)—with the federal marketing order— *35Marketing Order No. 917—and enabling statute—the Agricultural Marketing Agreement Act of 1937 (AMAA)—at issue in Glickman. (See Gerawan I, supra, 24 Cal.4th at pp. 507-508.) After making this comparison, we observed that the CMA was not materially different from the AMAA 0Gerawan I, at p. 508), and that the federal marketing order at issue in Glickman “did not in fact regulate so much more broadly and deeply than the California Plum Marketing Program” (Gerawan I, at p. 508). Based on these similarities, we held that Glickman—which upheld the constitutionality of Marketing Order No. 917—established that the California Plum Marketing Program did not violate the First Amendment. (See Gerawan I, at p. 508.)
Using the same reasoning, the majority reaffirms the constitutionality of the California Plum Marketing Program in light of the United States Supreme Court’s decision in United Foods. (See maj. opn., ante, at pp. 16-20.) But United Foods does not appear to support the majority’s reasoning. In United Foods, the United States Supreme Court held that a federal marketing order issued pursuant to the Mushroom Promotion, Research, and Consumer Information Act (MPRCIA) did not satisfy the test for compelled speech established in Abood v. Detroit Bd. of Ed. (1977) 431 U.S. 209 [52 L.Ed.2d 261, 97 S.Ct. 1782], and Keller v. State Bar of Cal. (1990) 496 U.S. 1 [110 L.Ed.2d 1, 110 S.Ct. 2228], and was therefore unconstitutional. (United Foods, supra, 533 U.S. at pp. 413-417.) To reach this holding, the court carefully distinguished the MPRCIA marketing order from the federal marketing order found constitutional in Glickman. According to the court, “[i]n Glickman the mandated assessments for speech were ancillary to a more comprehensive program restricting marketing autonomy.” (United Foods, at p. 411.) By contrast, the “advertising itself . . . [was] the principal object of the regulatory scheme” at issue in United Foods. (Id. at pp. 411-412.)
The United States Supreme Court did not reach this conclusion by simply comparing the enabling statutes and the marketing orders at issue in United Foods and Glickman. Instead, the court considered “the entire regulatory program” (United Foods, supra, 533 U.S. at p. 412), and asked whether the mushroom market was, in reality, as heavily regulated as the tree fruit market in Glickman. Because there were “no marketing orders that regulate how mushrooms may be produced and sold, no exemption from the antitrust laws, and nothing preventing individual producers from making their own marketing decisions” (United Foods, at p. 412), the court concluded that “there is no ‘heavy regulation through marketing orders’ in the mushroom market” (id. at p. 413). Although “greater regulation of the mushroom market might have been implemented under the” AMAA, “the compelled contributions for advertising [were] not part of some broader regulatory scheme.” (United Foods, at p. 415.) By contrast, the California tree fruit market was subjected to “ ‘detailed marketing orders’ ” containing various regulations that substantially limited the marketing autonomy of producers. (Id. at p. 412, quoting *36Glickman, supra, 521 U.S. at p. 469.) And, although these orders varied in the extent that they eliminated competition (see United Foods, at p. 420), they “to a large extent deprived producers of their ability to compete and replaced competition with a regime of cooperation” (id. at p. 414). The court therefore held that “[t]he cooperative marketing structure relied upon by a majority of the Court in Glickman to sustain an ancillary assessment finds no corollary here.” (Id. at p. 415.)
Thus, under United Foods, courts must focus on the actual extent of regulation in the market at issue in order to determine whether the compelled funding of speech violates the federal Constitution. If the mandatory assessments are part of a comprehensive regulatory scheme that actually limits the autonomy of its participants and establishes a broader collective enterprise, then they are constitutional. Absent such a regulatory system, however, they are not.
Based on the limited record before us, I do not believe we can conclude that the California Plum Marketing Program is “ancillary to a more comprehensive program restricting marketing autonomy” like the marketing orders at issue in Glickman. (United Foods, supra, 533 U.S. at p. 411.) The marketing orders at issue in Glickman contain extensive and detailed regulations giving the Secretary of Agriculture broad authority to regulate the tree fruit market. (See, e.g., 7 C.F.R. §§ 916.52, 917.41 (2004).) And these regulations actually and substantially limit the autonomy of the participants (see, e.g., 7 C.F.R. §§ 916.55, 916.350, 916.356, 917.45, 917.442, 917.459, 917.461 (2004)), as well as impose extensive reporting requirements (see, e.g., 7 C.F.R. §§ 916.60, 917.50 (2004)).
By contrast, there is no evidence in the limited record before us that the California Plum Marketing Program does the same. The general provisions of the California Plum Marketing Program relating to research and quality standards and inspections found in the record do not appear to establish the actual extent of regulation in the California plum market. These provisions therefore do not, by themselves, establish a market characterized by “[cjollective action, rather than the aggregate consequences of independent competitive choices,” like the tree fruit market in Glickman. (Glickman, supra, 521 U.S. at p. 461.) Moreover, the California Plum Marketing Program permits an assessment of up to 11 cents per 28-pound box for generic advertising, but only permits an assessment of up to 2 cents per box for research activities and up to 7 cents per box for quality standards and inspection activities. (See Gerawan I, supra, 24 Cal.4th at p. 480.) The program therefore contemplates the use of 55 percent of the funds assessed for generic advertising alone. And the actual percentage of assessed funds earmarked for generic advertising could be even higher. Thus, absent evidence of the actual percentage of *37assessed funds used for generic advertising, “ ‘the principal object of the’ ” program is arguably “ ‘commercial speech itself’ ” in violation of the First Amendment. (Livestock Marketing Ass’n v. United States Dept. of Agriculture (8th Cir. 2003) 335 F.3d 711, 717 [holding that a marketing order violated the federal Constitution in light of United Foods because “ ‘at least 50% of the assessments collected and paid ... are used for advertising’ ”], cert, granted sub nom. Veneman v. Livestock Marketing Ass’n, supra, 541 U.S. 1062 [158 L.Ed2d 962, 124 S.Ct. 2389].)
Thus, without an evidentiary record establishing the actual extent of regulation of the California plum market, we cannot say whether the California Plum Marketing Program “is part of a larger cooperative regulatory program with substantial nonexpressive elements” as understood in United Foods. (Maj. opn., ante, at p. 20.) Accordingly, I believe we must remand for further factfinding if we choose to address the issue of whether the compelled funding of advertising at issue here violates the federal Constitution.
Ruvolo, J.,* concurred.
Associate Justice of the Court of Appeal, First Appellate District, Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.