THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY BLOOM, MAHER, M. K. KELLER, PETRARCA, AUMENT, BEAR, BENNINGHOFF, BOBACK, BOYD, CREIGHTON, CUTLER, DELOZIER, DENLINGER, EVERETT, FLECK, GABLER, GEIST, GIBBONS, GILLEN, GINGRICH, GRELL, GROVE, HACKETT, HAHN, HARHAI, HEFFLEY, HELM, HENNESSEY, HICKERNELL, HUTCHINSON, JOSEPHS, KAMPF, KAUFFMAN, F. KELLER, KNOWLES, LAWRENCE, MAJOR, MARSHALL, MASSER, METZGAR, MILLARD, MILLER, MURT, MUSTIO, OBERLANDER, O'NEILL, PEIFER, PERRY, PICKETT, PYLE, REESE, REICHLEY, ROCK, ROSS, SACCONE, SAINATO, SANTONI, SAYLOR, CULVER, SCHRODER, SIMMONS, STERN, STEVENSON, SWANGER, TALLMAN, TOBASH, TOEPEL, TOOHIL, VEREB AND VULAKOVICH, MAY 2, 2011

REFERRED TO COMMITTEE ON AGRICULTURE AND RURAL AFFAIRS, MAY 2, 2011  

AN ACT

Amending Title 3 (Agriculture) of the Pennsylvania Consolidated

Statutes, providing for the establishment, 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.  Definitions.

4603.  Pennsylvania Preferred® trademark.

4604.  Licensee qualification.

4605.  Duties and authority of department.

4606.  Trademark license agreement, application and licensure

process.

4607.  Fees and costs.

4608.  Pennsylvania Preferred® Trademark Licensing Fund.

4609.  Civil penalties.

4610.  Injunctive relief.

4611.  Rules and regulations.

§ 4601.  Short title of chapter.

This chapter shall be known and may be cited as the

Pennsylvania Preferred Act.

§ 4602.  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."  Any of the following:

(1)  Agricultural, apicultural, aquacultural,

horticultural, floricultural, silvicultural, viticultural and

dairy products.

(2)  Livestock and the products thereof.

(3)  Ranch-raised furbearing animals and the products

thereof.

(4)  Poultry and the products of poultry.

(5)  Products commonly raised or produced on farms which

are:

(i)  intended for human consumption; or

(ii)  transported or intended to be transported in

commerce.

(6)  Processed or manufactured products of products

commonly raised or produced on farms which are:

(i)  intended for human consumption; or

(ii)  transported or intended to be transported in

commerce.

"Department."  The Department of Agriculture of the

Commonwealth.

"FDA."  The Food and Drug Administration of the Department of

Health and Human Services of the United States.

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

Pennsylvania Preferred® trademark license agreement with the

department.

"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, promotes or is involved with any aspect of

production, processing, preparation, promotion or sale of

Pennsylvania-produced agricultural commodities.

"USDA."  The United States Department of Agriculture.

§ 4603.  Pennsylvania Preferred® trademark.

The department shall take all actions necessary and

appropriate to acquire, create, establish, register, maintain,

license, promote and protect a Pennsylvania Preferred® trademark

for use on or in connection with the sale or promotion of a

Pennsylvania-produced agricultural commodity.

§ 4604.  Licensee qualification.

A qualified entity shall meet at least one of the following

requirements to become a licensee:

(1)  Be a person that produces an agricultural commodity:

(i)  that is entirely harvested from a Pennsylvania

location or is grown at a Pennsylvania location for at

least 75% of the commodity's production cycle; and

(ii)  that, if inspected by the department, the USDA,

the FDA or an independent certifying agency approved by

the department, is approved by the inspecting authority

as meeting all applicable food quality, sanitation,

safety and labeling standards of that inspecting

authority.

(2)  Be a person that processes an agricultural

commodity:

(i)  in whole or in part at a facility which is

located within this Commonwealth and which is in

compliance with 3 Pa.C.S Ch. 57 Subch. B (relating to

food safety) and all applicable Federal and State food

quality, sanitation, safety and labeling standards

regulations; and

(ii)  the use of which, to the maximum extent

possible given production season restrictions or market

availability, is a Pennsylvania-produced agricultural

commodity.

(3)  Be a person that markets an agricultural commodity

from a person that meets the provisions of paragraph (1) or

(2).

(4)  Be a public eating and drinking place licensed under

and in compliance with Subchapter A of Chapter 57 (relating

to retail food facility safety) or under the act of August

24, 1951 (P.L.1304, No.315), known as the Local Health

Administration Law, which offers a menu item that includes an

agricultural commodity from a person that meets the

provisions of paragraph (1) or (2).

(5)  Be a person approved by the department to use and

promote the use of the Pennsylvania Preferred® trademark to

constituencies in furthering the purposes of this chapter.

§ 4605.  Duties and authority of department.

(a)  Department authority to enter into trademark license

agreements.--

(1)  The department may enter into a trademark license

agreement with a qualified entity.

(2)  The department shall establish the terms and

conditions under which a person may be licensed to use the

Pennsylvania Preferred® trademark. Terms and conditions shall

require a licensee to produce, process or market an

agricultural commodity in a manner acceptable to the

department which protects the reputation of the Pennsylvania

Preferred® trademark.

(3)  The department may periodically review a licensing

agreement to determine if the terms are being met.

(b)  Cooperative activities.--The department may engage in

cooperative activities to implement and advance the purposes of

this chapter.

§ 4606.  Trademark license agreement, application and licensure

process.

(a)  General rule.--

(1)  A qualified entity may apply to be licensed to use

the Pennsylvania Preferred® trademark.

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

department and shall require identification information and

other information the department deems necessary to determine

if an applicant is a qualified entity.

(3)  The application form shall be provided by the

department upon request.

(4)  The department shall have the 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.

(6)  A trademark license agreement under this chapter

shall be effective for one year from the date upon which an

agreement is executed and may be renewed. An agreement shall

contain provisions allowing for the termination of the

license agreement by the department or a licensee upon 60

days' advance written notice to the other party.

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

license agreement that is in effect prior to the effective date

of this section and that authorizes the use of a Pennsylvania

Preferred® trademark shall remain in effect until it is

terminated or until the end of the current contract year,

whichever occurs first.

§ 4607.  Fees and costs.

(a)  Trademark license fee.--The department may impose and

collect from a qualified entity a license fee of no more than

$100 annually per license for the use of the Pennsylvania

Preferred® trademark.

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

shall be due at the time a qualified entity enters into a

trademark license agreement with the department and at the time

an existing trademark license agreement is renewed for an

additional one-year interval.

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

department shall establish a trademark license fee described

under subsection (a) through publication of notice in the

Pennsylvania Bulletin and may revise the fee by the same

procedure.

(d)  Reimbursement of costs.--

(1)  The department may 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. A 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 related costs.

(2)  The department may charge a licensee for costs of

Pennsylvania Preferred® promotional materials provided by the

department at the request of the licensee.

§ 4608.  Pennsylvania Preferred® Trademark Licensing Fund.

(a)  Establishment.--There is established a fund which shall

be an interest-bearing restricted revenue account to be known as

the Pennsylvania Preferred® Trademark Licensing Fund. The

following money shall be deposited into the fund:

(1)  Money as is appropriated, given, granted or donated

for the purpose established under this chapter by the Federal

Government, the Commonwealth or any other government or

private agency or person.

(2)  Funds derived from the fees and costs established

under section 4607 (relating to fees and costs).

(3)  Funds derived from civil penalties collected by the

department under section 4609 (relating to civil penalties).

(b)  Appropriation.--Money in the fund is appropriated on a

continuing basis to the department for the purpose of

administering this chapter. All interest and earnings received

from investment or deposit of the money in the fund shall be

paid into the account for the purpose authorized by this

section. Any unexpended money and any interest or earnings on

the money in the fund may not be transferred or revert to the

General Fund, but shall remain in the account to be used by the

department for the purpose specified under this section.

(c)  Use.--Money deposited in the fund shall be used as

follows:

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

Preferred® trademark with respect to Pennsylvania-produced

agricultural commodities.

(2)  To promote the Pennsylvania Preferred® trademark as

an identification of origin and quality.

(3)  To promote Pennsylvania-produced agricultural

commodities 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.

§ 4609.  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 provided under law for the collection of debt.

§ 4610.  Injunctive relief.

In addition to any other remedies provided for under 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 the 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 under

section 4611 (relating to rules and regulations).

§ 4611.  Rules and regulations.

The department shall promulgate rules and regulations

necessary to promote the efficient, uniform and Statewide

administration of this chapter. For two years from the effective

date of this section, the department shall have the power and

authority to promulgate, adopt and use guidelines to implement

the provisions of this chapter. The guidelines shall be

published in the Pennsylvania Bulletin but shall not be subject

to review under section 205 of the act of July 31, 1968

(P.L.769, No.240), referred to as the Commonwealth Documents

Law, sections 204(b) and 301(10) of the act of October 15, 1980

(P.L.950, No.164), known as the Commonwealth Attorneys Act, or

the act of June 25, 1982 (P.L.633, No.181), known as the

Regulatory Review Act. All guidelines shall expire no later than

December 31, 2013, and shall be replaced by regulations which

shall have been promulgated, adopted and published as provided

under law.

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