Black v. Bland Farms, LLC.

• Decision Date: 30 June 2015
• Docket Number: A15A1610.,Nos. A15A0042,s. A15A0042
• Citation: 774 S.E.2d 722,332 Ga.App. 653
• Parties: BLACK v. BLAND FARMS, LLC.
• Court: Georgia Court of Appeals

332 Ga.App. 653

774 S.E.2d 722

BLACK

v.BLAND FARMS, LLC.

Nos. A15A0042

A15A1610.

Court of Appeals of Georgia.

June 30, 2015.

Certiorari Denied Oct. 5, 2015.

Isaac Byrd, Deputy Atty. Gen., John Edward Hennelly, Senior Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Elizabeth Ahern Monyak, Asst. Atty. Gen., for Appellant.

Balch & Bingham, Christopher Scott Anulewicz, Michael J. Bowers, Joshua Michael Moore, Atlanta, for Appellee.

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

Opinion

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 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 Geogia'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 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 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 on the market, but more importantly it will increase the probability the crop as a whole has matured to a marketable condition....

In early March of 2013, the crop appeared to be maturing early due to a warm December and January. Speculation began that Vidalia onions would be ready to ship by early April. Then the weather turned cool and damp by mid–March. The crop stalled and did very little maturing over the last two weeks of March. As April arrived, the tops of the onions refused to fall, indicating that they were not ready for harvest. As the impending promised ship dates approached, we were faced without a good option except to proceed with prior shipping commitments. As a result, most Vidalia onions that were shipped in early to mid April were immature, soft, and discolored ... Word in the market was, “What is wrong with the Vidalia's this year?” and “They look horrible.” The poor quality and appearance of the onions caused retail sales to stall and eventually caused markets to fall....

Texas has proven that they can produce a mild, good quality, granex type onion. When we in the Vidalia go to market early, our product does not have the curb appeal of the well-cured, quality granex onion from Texas. This encourages retail customers to stay with Texas until Vidalia is more mature....

Labor is often scheduled to arrive in early April because the industry wants to be ready when the crop is ready. Often though, the labor is paid to stay out of the fields while we wait for the crop to mature. If the grower waits on the crop, the labor bill rises. If the grower takes the crop prematurely to reduce his labor exposure, the quality of the product shipped is compromised. I believe that as an industry, we could save money on labor by knowing when the season starts.

A second grower explained in a letter to the Commissioner that “[t]he poor quality of these early onions was one significant contributing factor to the poor demand for Vidalia onions this year.” Another grower noted in his letter that a pack date may not be “the answer, but it is likely the best answer to our industry concerns.” (Emphasis in original.) He explained:

We've taken a May/June fresh market and forced it into an April/May market—akin to forcing a square peg into a round hole. By bowing to the demand of buyers who “won't get beat” regarding first to market, we've done ourselves and the consumer a disservice by placing an inferior product on the market in those first weeks of shipping ... we saw untold receivers leave Vidalia® before we got started good, to return to Texas.

Representatives from several onion farms attended the July 2013 meeting, including representatives from Bland Farms. Counsel for Bland Farms expressed strong opposition to the proposed rule change on grounds that such a change “can only be done by the legislature” and would alter the current shipping date set forth in OCGA § 2–14–136. Several other onion growers testified that they were in favor of the proposed regulation because they felt it was needed to protect the Vidalia brand. One grower explained that immature onions are “jeopardizing our industry.” Another grower testified:

Our industry has suffered the last few years ... as a result of onions being put on the market early that were immature, that were dug premature ... And I think we have much better varieties. Our industry was founded on the traditional Vidalia varieties, not the early varieties—the shape, the taste, the shelf life ... Inspection service is great and I think there's something to be said for our inspection service. But going about it of fixing our problem with only a more strict inspection service I don't think is going to work. Number one, the manpower. To inspect every load that gets shipped out of the industry, we don't have the manpower for that ... Keep in mind that a lot of our onions that were shipped this year, that were shipped prior to the 15th, which is our set opening date, were inspected; they passed an inspection. And you can make these onions pass inspection, but once they get on the shelf, they don't have any shelf life.

A third grower testified:

I've been growing onions 50–plus years, and there's been more damage done to the Vidalia name recognition of the onion in the last few years by planting all these early-variety onions that are not what fall in the category of what I consider a true Vidalia onion. We built this name of the Vidalia onion on a good, true onion that is sweet, has good shelf life, and what's been hitting the market early in the past few years has not been the true Vidalia onions ... Breeders are breeding onions that come off 30 days early. They might come off 30 days earlier but they're not the true Vidalia nature of the onion. They're not sweet, they're not mild, you have aftertaste, and they do not last ... We're rushing the onions; we're

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