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Black v. Bland Farms, LLC

Court of Appeals of Georgia

June 30, 2015

BLACK
v.
BLAND FARMS, LLC

Page 723

Cert. applied for.

Vidalia Onion Act. Fulton Superior Court. Before Judge Wright.

Samuel S. Olens, Attorney General, Isaac Byrd, Deputy Attorney General, John E. Hennelly, Senior Assistant Attorney General, Elizabeth A. Monyak, Assistant Attorney General, for appellant.

Balch & Bingham, Michael J. Bowers, Christopher S. Anulewicz, Joshua M. Moore, for appellee.

Alston & Bird, Nowell D. Berreth, David J. Stewart, Kyle G. A. Wallace, amici curiae.

BOGGS, Judge. Phipps, C. J., and Doyle, P. J., concur.

OPINION

Page 724

Boggs, Judge.

In Case No. A15A0042, Gary Black, in his official capacity as the Georgia Commissioner of Agriculture (" the Commissioner" ), appeals from a trial court ruling declaring a new Vidalia onion packing regulation invalid. The Commissioner contends that the plaintiff, Bland Farms, LLC, did not demonstrate that it had standing to bring the action, and that the new regulation was a valid one. For the following reasons, we agree with the trial court that Bland Farms has standing to bring a declaratory judgment action, but hold that the packing regulation was a valid exercise of the Commissioner's authority pursuant to the Vidalia Onion Act, OCGA § 2-14-130 et seq. We therefore affirm in part and reverse in part in Case No. A15A0042. Case No. A15A1610 is dismissed as moot.[1]

In 1986, the Georgia General Assembly enacted the Vidalia Onion Act, OCGA § 2-14-130. Use of the term " Vidalia" is prescribed by OCGA § 2-14-132:

Only onions which are of the Vidalia onion variety and which are grown within the Vidalia onion production area may be identified, classified, packaged, labeled, or otherwise [332 Ga.App. 654] designated for sale inside or outside this state as Vidalia onions. The term " Vidalia" may be used in connection with the labeling, packaging, classifying, or identifying of onions for sale inside or outside this state only if the onions are of the Vidalia onion variety and are grown in the Vidalia onion production area.

The Commissioner averred: " In 1990, the State of Georgia, through the Department of Agriculture, applied for the U.S. certification mark 'Vidalia® ,' and the mark was registered with the U.S. Patent and Trademark Office on August 19, 1992." In 2000, the legislature amended the Vidalia Onion Act to provide that " [t]he Commissioner of Agriculture is authorized to take all actions necessary and appropriate" to promote and protect that trademark " for use on or in connection with the sale or promotion of Vidalia onions and products containing Vidalia onions." OCGA § 2-14-132.1.

Within the past few years, however, the Georgia Department of Agriculture (" the Department" )

received a large number of complaints from consumers unhappy with the quality of Vidalia® onions on the store's shelves ... . Decreased consumer confidence could ultimately lead to reduced demand for Vidalia® onions and the potential for long-term adverse economic impacts on Georgia's Vidalia® onion industry.

The Commissioner stated further:

The Vidalia® onion industry has faced a serious quality control problem caused in large part because Vidalia® onions are being harvested prematurely. Vidalia® onions are typically planted in the fall season and are rarely ready to be harvested before mid-April. The Vidalia® onion needs time in the soil to fully mature and develop the sweet flavor and other characteristics for which it is known. Some Vidalia® growers, in an attempt to beat their competitors to fill store shelves with sweet onions, have shipped onions under the Vidalia® trademark that were harvested too soon and of poor quality, with diminished shelf life. This practice has diminished consumer confidence in Vidalia® onions.

In order to address these concerns, on June 27, 2013, the Department sent a " Notice of Intent to Consider Amendments to certain rules pertaining to the Georgia Vidalia Onion Act" to all interested [332 Ga.App. 655] persons and parties. The notice invited written comments that would be considered at a public hearing to be held on July 30, 2013. The Commissioner proposed to promulgate a regulation that would establish a " packing date" before which no onion could be packed as a Vidalia onion:

Packing precedes shipping, and by setting an appropriate April deadline before which no Vidalia® onion could be packed, much less shipped, the packing date would

Page 725

have the salutary effect of requiring growers to keep the onions in the soil for a longer period of time and provide more time for curing the onions.

Prior to the July 2013 hearing, the Commissioner received letters in support of the proposed regulation. One grower explained:

Growers and shippers want to be first to market to extend their season and capitalize on this draw factor. As shippers, we are all pressured to ship early onions based on factors unrelated to the crop itself. Often times, a retailer's advertising calendar is set weeks in advance without any confirmation the crop will be mature and ready to ship. It is difficult to say " no" to a retailer and hope the business will return the following week. The establishment of a pack date using the proposed guidelines will not only reduce the quantity of immature onions ...

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