THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY HOUGHTON, HANNA, BRADFORD, BRIGGS, SANTARSIERO, BELFANTI, CALTAGIRONE, DALEY, DONATUCCI, FREEMAN, GEORGE, GIBBONS, GOODMAN, HARHAI, HENNESSEY, HESS, HORNAMAN, HUTCHINSON, JOSEPHS, KORTZ, KULA, LENTZ, LONGIETTI, MANN, MARSHALL, McILVAINE SMITH, M. O'BRIEN, O'NEILL, PARKER, PASHINSKI, PETRARCA, READSHAW, ROHRER, SAINATO, SANTONI, SIPTROTH, K. SMITH, SOLOBAY, STURLA AND WHITE, FEBRUARY 18, 2010

REFERRED TO COMMITTEE ON AGRICULTURE AND RURAL AFFAIRS, FEBRUARY 18, 2010  

AN ACT

Amending Title 3 (Agriculture) of the Pennsylvania Consolidated

Statutes, providing for the registration, licensing and use

of a Pennsylvania Preferred® trademark; establishing the

Pennsylvania Preferred® Trademark Licensing Fund; and

providing for penalties and for enforcement.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Title 3 of the Pennsylvania Consolidated Statutes

is amended by adding a chapter to read:

CHAPTER 46

PENNSYLVANIA PREFERRED® TRADEMARK

Sec.

§ 4601.  Short title of chapter.

§ 4602.  Declaration of policy.

§ 4603.  Definitions.

§ 4604.  Pennsylvania Preferred® trademark.

§ 4605.  Fees and costs.

§ 4606.  Establishment of fund.

§ 4607.  Disposition of funds.

§ 4608.  Duties and authority of department.

§ 4609.  Trademark license agreement, application and licensure

process.

§ 4610.  Pennsylvania-produced agricultural commodity or

agricultural product.

§ 4611.  Civil penalties.

§ 4612.  Injunctive relief.

§ 4601.  Short title of chapter.

This chapter shall be known and may be cited as the

Pennsylvania Preferred Act.

§ 4602.  Declaration of policy.

The General Assembly finds and declares as follows:

(1)  The promotion of the production and consumption of

Pennsylvania-produced agricultural commodities and

agricultural products is of major economic interest in this

Commonwealth.

(2)  It is the policy of the Commonwealth to maintain the

Pennsylvania Preferred® trademark as a uniform, recognizable

state-of-origin standard for Pennsylvania-produced

agricultural commodities and agricultural products that are

produced to all applicable production and quality standards

and to provide producers and marketers of these commodities

and products with the opportunity to make use of this

trademark for marketing purposes.

(3)  It is the purpose of this chapter to provide the

department authority to implement this policy by authorizing

it to acquire, maintain and license the Pennsylvania

Preferred® trademark and to engage in cooperative

relationships and other activities in furtherance of

promoting commerce in Pennsylvania-produced agricultural

commodities and agricultural products that are licensed to

use this trademark.

§ 4603.  Definitions.

The following words and terms when used in this chapter shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Agricultural commodity."  As defined in section 4502

(relating to definitions).

"FDA."  The Food and Drug Administration of the United States

Department of Health and Human Services.

"Fund."  The Pennsylvania Preferred® Trademark Licensing Fund

established in section 4606 (relating to establishment of fund).

"Licensee."  A qualified entity that is subject to a current

trademark license agreement with the Department of Agriculture,

addressing the conditions under which the qualified entity may

make commercial use of the Pennsylvania Preferred® trademark.

"Pennsylvania Preferred® trademark."  One or more trademarks

that consist of the phrase "Pennsylvania Preferred" or "PA

Preferred," and that may include specific graphic designs or

artwork as part of the trademark registration.

"Person."  An individual, partnership, corporation,

association or any other legal entity.

"Qualified entity."  A person that produces, processes,

prepares, sells or is involved with any aspect of production,

processing, preparation or sale of Pennsylvania-produced

agricultural commodities or agricultural products.

"USDA."  The United States Department of Agriculture.

§ 4604.  Pennsylvania Preferred® trademark.

The department shall take all actions necessary and

appropriate to acquire, create, register, maintain, license,

promote and protect a Pennsylvania Preferred® trademark for use

on or in connection with the sale or promotion of Pennsylvania-

produced agricultural commodities and agricultural products.

§ 4605.  Fees and costs.

(a)  Trademark license fee.--The department is authorized to

impose and collect a license fee of up to $100 for the use of

the Pennsylvania Preferred® trademark in connection with the

advertising, display, promotion, packaging, marketing or sale of

Pennsylvania-produced agricultural commodities and agricultural

products.

(b)  Reimbursement of costs.--The department is authorized to

charge a licensee for costs incurred by the department in

connection with that licensee's participation in any activity,

trade show, exhibition or other promotional event conducted or

facilitated by the department. The charge shall reasonably

reflect the costs incurred by the department in facilitating the

licensee's participation and may include such costs as

proportional shares of event registration fees, equipment rental

fees, display area rental fees and other costs.

(c)  Procedure for establishing trademark license fee.--The

department shall establish the trademark license fee described

in subsection (a) through publication of notice in the

Pennsylvania Bulletin and may revise this fee by the same

procedure.

(d)  Fee interval.--A fee established under subsection (a)

shall be due each time a person enters into a trademark license

agreement with the department and each time an existing

trademark license agreement is renewed for an additional one-

year interval.

§ 4606.  Establishment of fund.

There is established a special fund in the State Treasury, to

be known as the Pennsylvania Preferred® Trademark Licensing

Fund, for the following purposes:

(1)  To promote the licensure and use of the Pennsylvania

Preferred® trademark with respect to Pennsylvania-produced

agricultural commodities and agricultural products.

(2)  To promote the Pennsylvania Preferred® trademark as

a standard of origin and quality.

(3)  To promote Pennsylvania-produced agricultural

commodities and agricultural products with respect to which

the Pennsylvania Preferred® trademark is licensed.

(4)  To pay costs associated with monitoring the use of

the Pennsylvania Preferred® trademark, prohibiting the

unlawful or unauthorized use of the trademark and enforcing

rights in the trademark.

(5)  To otherwise fund the department's costs in

administering and enforcing this chapter.

§ 4607.  Disposition of funds.

The following funds shall be credited to the Pennsylvania

Preferred® Trademark Licensing Fund:

(1)  Funds derived from the fees established under

section 4605(a) (relating to fees and costs).

(2)  Funds derived from the reimbursement of costs

described in section 4605(b).

(3)  Funds derived from contributions from any other

sources and designated by the contributor to be credited to

the fund.

(4)  Funds derived from civil penalties collected by the

department under section 4611 (relating to civil penalties).

(5)  Any other funds lawfully designated to be credited

to the fund.

§ 4608.  Duties and authority of department.

(a)  Department authority to enter into trademark license

agreements.--The department is authorized to enter into a

trademark license agreement with any qualified entity. The

agreement shall address the conditions under which the qualified

entity may make commercial use of the Pennsylvania Preferred®

trademark.

(b)  Department authority to protect commercial value of

trademark.--The department shall include, in a trademark license

agreement, such terms and requirements as it determines are

reasonably necessary to ensure that a licensee and the

Pennsylvania-produced agricultural commodities and agricultural

products it markets under the Pennsylvania Preferred® trademark

are:

(1)  in compliance with all applicable Federal and State

standards;

(2)  produced using current applicable good production

practices and good management practices; and

(3)  produced for introduction into commerce so as to

create and protect the reputation of commodities and products

marketed under the Pennsylvania Preferred® trademark as being

of good quality.

(c)  Cooperative activities.--The department is authorized to

engage in cooperative activities with other entities to

implement and advance the purposes of this chapter.

§ 4609.  Trademark license agreement, application and licensure

process.

(a)  General rule.--

(1)  A person may apply to be licensed to use the

Pennsylvania Preferred® trademark.

(2)  The application shall be on a form prepared by the

department and shall require identification information and

other information the department deems necessary to making a

determination as to whether an applicant is a qualified

entity.

(3)  The application form shall be provided by the

department upon request.

(4)  The department shall have and exercise discretion to

determine whether a person is a qualified entity for purposes

of this chapter.

(5)  If the department determines that an applicant is a

qualified entity, it shall offer that qualified entity a

trademark license agreement, addressing the conditions under

which the qualified entity may make commercial use of the

Pennsylvania Preferred® trademark.

(6)  A trademark license agreement under this chapter

shall be of no more than one year's duration and shall

contain provisions allowing for the termination of the

license agreement by the department upon 60 days' advance

written notice to the licensee.

(b)  Preexisting trademark license agreements.--Any trademark

license agreement that is in effect prior to the effective date

of this chapter and that authorizes the use of the Pennsylvania

Preferred® trademark shall remain in effect until it is

terminated or until the end of the current contract year,

whichever occurs first.

§ 4610.  Pennsylvania-produced agricultural commodity or

agricultural product.

A Pennsylvania-produced agricultural commodity or

agricultural product includes the following:

(1)  Fresh unprocessed food, nursery products and other

agricultural commodities that:

(i)  are entirely harvested from a Pennsylvania

location; or

(ii)  are grown at a Pennsylvania location for at

least 75% of the product's production cycle, inspected by

the department, USDA, FDA or an independent certifying

agency approved by the department, and are approved by

the inspecting entity as meeting all applicable quality

standards of that inspecting entity with no exceptions.

(2)  Agricultural products where:

(i)  the licensee is headquartered within this

Commonwealth;

(ii)  the final processing and packaging of the

agricultural product occurs within this Commonwealth; and

(iii)  the licensee agrees that where the primary

agricultural ingredients of the processed agricultural

product are grown within this Commonwealth, the licensee

shall buy as much of that Pennsylvania-produced

ingredient as is practical given production season

restrictions and other business conditions.

(3)  Processors or manufacturers of agricultural products

where:

(i)  the licensee is headquartered within this

Commonwealth;

(ii)  the final processing and packaging of the

agricultural product occurs within this Commonwealth; and

(iii)  the licensee agrees that where the primary

agricultural ingredients of the processed agricultural

product are grown within this Commonwealth, the licensee

shall buy as much of that Pennsylvania-produced

ingredient as is practical given production season

restrictions and other business conditions.

(4)  Grocery stores, plant nurseries and other retailers

where the licensee:

(i)  is physically located within this Commonwealth;

and

(ii)  carries at least 50 different Pennsylvania

Preferred® commodities or products.

(5)  Individual restaurant menu items that include

featured Pennsylvania Preferred® ingredients.

(6)  Restaurants that:

(i)  are physically located within this Commonwealth;

and

(ii)  offer as many Pennsylvania Preferred® items as

is practical given production season restrictions and

other business conditions.

(7)  Indirect program participants, such as distributors,

wholesalers and trade associations that agree to promote use

of the Pennsylvania Preferred® trademark to their

constituencies and to use the Pennsylvania Preferred®

trademark only in connection with furthering the purposes of

this chapter.

§ 4611.  Civil penalties.

In addition to any other remedy available at law or in equity

for a violation of a provision of this chapter or a trademark

license agreement established under this chapter, the department

may assess a civil penalty upon the person responsible for the

violation. The civil penalty assessed shall not exceed $10,000

and shall be payable to the Commonwealth and collectible in any

manner now or hereafter provided at law for the collection of

debt.

§ 4612.  Injunctive relief.

In addition to any other remedies provided for in this

chapter, the Attorney General, at the request of the department,

may initiate, in the Commonwealth Court or the court of common

pleas of the county in which the defendant resides or has his

place of business, an action in equity for an injunction to

restrain violations of this chapter or a trademark license

agreement. In any such proceeding, the court shall, upon motion

of the Commonwealth, issue a preliminary injunction if it finds

that the defendant is engaging in unlawful conduct under this

chapter or is engaging in conduct which is causing immediate or

irreparable harm to the public. The Commonwealth shall not be

required to furnish bond or other security in connection with

the proceedings. In addition to an injunction, the court, in

equity proceedings, may levy civil penalties as provided in

section 4611 (relating to civil penalties).

Section 2.  This act shall take effect in 60 days.