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Unit 10: Misbranding and Misrepresentation  


Labeling Requirements


Perishable agricultural commodities are not required to be labeled under PACA, however any labeling that is used must be accurate.


Responsible growers and shippers have always been deeply concerned with instances of misbranding produce. Much of this concern has centered on the misuse of the U. S. grade designations or misbrandings as to State, country or region of origin. Unlike most other agricultural products, fresh fruits and vegetables may be labeled with the U. S. grades without official inspection and certification. Those who buy and sell fresh fruits and vegetables throughout the marketing chain do so, for the most part, on a good faith basis. Persons who knowingly misbrand or misrepresent fruits and vegetables pose a serious threat to responsible businesses. The ethical trader is placed at a price disadvantage when competing with misrepresented produce and the disadvantage carries all the way through to the ultimate consumer who pays for something that he/she does not get.


What constitutes misbranding?


Misrepresentation by word, act, mark, stencil, label, statement, or deed, the character, kind, grade, quality, quantity, size, pack, weight, condition, degree, or maturity, or State, country, or region of origin of any perishable agricultural commodity received, shipped, sold, or offered to be sold in interstate or foreign commerce.


PACA officials have the authority to examine the records of any licensee to determine the ownership, control, packer, or State, country or region of origin, of any perishable agricultural commodity that is suspected of being misbranded.


What happens when it is determined that a lot is misbranded?


The responsible firm must make arrangements to correct the markings on the container prior to resale. Unintentional and inadvertent misbrandings will typically be settled informally either with a written warning or a monetary penalty. The penalty is based on the circumstances surrounding the violation and a firmís misbranding or misrepresentation history.


Schedule of Warnings and Penalties


Warning Letters: When informal settlement of liability is appropriate, violators are given two written warnings and an opportunity to take preventative action. Warning letters include an explanation of the requirements of the Act and recommendations of actions that the violator can take to avoid future violations.


Informal Sanctions: Violations subsequent to the sending of the warning letters referred to above, other than flagrant violations, may be settled informally. The informal procedure permits the violator to resolve the matter by payment of a monetary penalty pursuant to a schedule set out in lieu of a formal proceeding.


Formal Sanctions: In cases involving repeated or flagrant violations of the Act, formal proceedings seeking the suspension or revocation of the violator's license may be instituted.


The best way to safeguard against misbranding violations is to make sure that all descriptive factors (i.e., grade, size, origin, weight, count, etc.) are covered by a USDA Positive Lot Identification (PLI) inspection on all shipments prior to shipment. This specific identification inspection procedure is protection for the shipper since an inspection certificate is evidence of compliance. It also provides assurance to the buyer that the lot is properly marked.


If you have any questions about this course material, please direct them to Cathy Hance, PACA's Misbranding Officer, Washington DC at 202-720-5073, or via email at cathy.hance@usda.gov.



 
  Last Modified Date: 01/17/2013