Summary of a Recent
Judicial
Development in
Perishable Agricultural Commodities Act
Canned Goods Not Considered To Be a Perishable
Agricultural Commodity
Jillian HishawNational AgLaw Center Graduate Assistant
In In re Fleming, 316 B.R. 809 (D. Del. 2004), the United States District Court for the District of Delaware held that canned goods were not perishable agricultural commodities under the Perishable Agricultural Commodities Act (PACA), 7 U.S.C. §§ 499a-499t, and therefore the sale of the canned goods did not create a PACA trust. The court explained that PACA defines a "perishable agricultural commodity" as "fresh fruits or vegetables ‘of every kind and character'" and that the PACA regulations expanded considerably upon the statutory definition. Id. at 809 (citation omitted). The court held that "despite the broad language employed . . . in . . . [the] regulation, it does not specifically include ‘canning' among those processes characterized as not altering the nature of a ‘fresh' fruit or vegetable. Absent such specific direction . . ., there is no persuasive evidence that canned goods otherwise were intended to be or are included within the scope of PACA's protection." Id. at 814. It concluded that "[i]n sum, the court declines to ignore PACA's plain language and legislative history or to discard common sense . . . ." Id.
The case was decided on November 8, 2004; this summary was posted Dec. 2, 2005.