Florida Litigation Attorney | Silver, Garvett & Henkel

Produce Marketing Contracts & PACA Disputes

Silver, Garvett & Henkel practices in two areas of agricultural law: (1) the negotiation of agreements between growers and marketing companies for the sale and distribution of fresh and perishable produce in North America; and (2) resolution of disputes involving the marketing and sale of fresh produce through Alternative Dispute Resolution (ADR) and Business Litigation. This includes litigation and both informal and formal reparation proceedings before the U.S Department of Agriculture (“USDA”) pursuant to the Perishable Agricultural Commodities Act (“PACA”). The firm’s produce and PACA practice is headed by Tim Henkel who is available for consultation on agricultural law issues.

U.S. and Canadian consumers have access to a bountiful harvest of the world’s fruits, vegetables, and plants, through an ever increasing dependence on foreign-grown and imported commodities. This reality is abundantly evident in Florida, with perishable commodities being regularly shipped to the State from the Caribbean as well as from both South and Central America.

Recognizing the importance of sales of perishable produce to interstate commerce and ultimately the American consumer, Congress enacted PACA to protect sellers of produce. The law generally requires licensing of the participants involved in the distribution and sale of perishable produce, prohibits unfair trade practices, and created the strong “PACA” Trust provisions for guaranteeing payment to sellers of perishable produce. The USDA has enacted PACA regulations to enforce the Act and the agency administers informal and formal reparation complaint proceedings. USDA awards in formal PACA complaint proceedings may be appealed to the Federal Courts where review is de novo, such that the case essentially starts over if appealed to the U.S. District Court. The failure of a PACA licensee to pay a final PACA award may result in license revocation.

Sales of produce are subject not only to applicable PACA law but also by the common law of contracts and Article II, Sales, of the Uniform Commercial Code (“U.C.C.”). Where the issue is not governed by the PACA statutes or regulations, state contract and UCC law often controls the resolution of a dispute. Hence, it is critical for effective legal representation in the produce industry that counsel be familiar with and have experience in contract and business law, including under the U.C.C.

Sales of perishable produce are often made in the industry through telephone calls. It is preferable to have sales agreements already in place to protect the marketer in case of a dispute.

Produce marketing agreements between growers and marketing companies are also critical to avoid misunderstandings and protect each party’s respective interests. Such agreements should address the numerous and often complex issues of such a relationship, often involving produce valued in the millions of dollars.

Silver, Garvett & Henkel can assist in the many other issues faced by marketers and growers in fresh produce distribution including but not limited to: warehousing agreements and resolution of produce damage claims against warehouses; insurance coverage for produce; agreements and disputes with vendors and suppliers for farm supplies such as boxes, seeds, agricultural film, fertilizers, pallets, and chemicals; release of containers from customs; trucking claims; charter agreements and disputes with ocean carriers; and the purchase and leasing of equipment, trailers, containers, and trucks.