Posts By: Bryan Nickerson

Dispute Resolution and Produce Industry Expertise at Your Fingertips

As a benefit to Regular shipping members of Western Growers (WG), the Trade Practices & Commodity Services department has assisted members in consultation on sales contracts since 1966. This guidance and education of rights and remedies available to sellers of perishable commodities has been invaluable. As a direct result of this obtainable service, several million ...

PACA: Allocation of Risk of Loss from Romaine Food Safety Alert Depends on Terms of Sale

The advisory warning issued last week about an E. coli outbreak in romaine lettuce has triggered numerous questions regarding the legal ramifications between seller and buyer with any affected romaine that was already received, or in-transit, or being prepared for shipment.  The allocation of the risk of loss depends on the terms of sale. For ...

Ensure that the “load and count” at shipping point is acknowledged by shipper, carrier and buyer

The term load and count is the notation on a bill of lading indicating that the contents (number of cartons or sacks) inside the refrigerated trailer were loaded and counted by both the shipper and trucker. If you are not allowing the carrier the opportunity to verify your count, your operation could be referred to ...

The Burden of Proof to establish Normal or Abnormal Transportation

When it comes to in-transit temperatures, it’s not always black and white to definitively establish if the shipment was affected by improper in-transit temperature maintenance. When the transportation record (temperature recorder/Carrier Download) clearly documents temperature abuse for a sustained period of time, the shipper should have no problem enforcing its FOB contract. However, what…

Romaine outbreak and understanding commercial contract implications under PACA

With the Advisory from U.S. Food and Drug Administration and Center for Disease Control announcements on November 20th and November 26th, the Trade Practices Department of Western Growers has fielded many calls from shippers on sales contract implications, rights, responsibilities and payment of fulfilled shipments. It is clear that this outbreak has triggered numerous questions ...

Understanding your contractual obligations when there is a supply shortage of product

Are you prepared when there are unexpected shortfalls of available produce you have contracted and agreed to ship to your customer? Whether it is a short-term ad commitment or an extended vendor agreement for a routine quantity of produce to be shipped, it is important to know your obligations and, more importantly, how you and ...

The Safe Food for Canadians Regulations (SFCR) become effective January 15, 2019

The content for this blog was compiled through the cooperation of the Canadian Produce Marketing Association (CPMA). The mission of CPMA is to enhance the market and facilitate trade of fresh fruits and vegetables for members. Western Growers has worked closely with CPMA as a trusted partner for many years. If you are a member ...

Condition/Quality Exclusions from Sales Contracts Must Be Disclosed, Agreed Upon At Time of Shipment, and Documented

Along with a New Year comes a crucial time of the year to be reminded of leafy greens (iceberg and romaine) exposure to possible freeze conditions in the field. Just last week, USDA Market News reported start of daily harvest curtailed by ice in the fields in the desert southwest lettuce growing regions. The low ...

Calculating contract compliance when all cartons shipped under a sales contract are not inspected at destination

By only taking a quick cursory review of the USDA inspection, a shipper may miss the full story as to whether there was an actual breach of contract (failure to meet good delivery). You must remember that a USDA certificate may in most circumstances reflect that the commodity failed to grade U.S. No. 1, but ...

Romaine Task Force Advises Updates to Labeling Q/A Document

The Romaine Task Force Subcommittee working to refine language associated with voluntary regional labeling of romaine products has updated their Q & A document to no longer require suppliers and distributors to include the harvest date on the labels of romaine products, as long as a date of harvest can be determined using existing dates ...

Documentation of Temperatures at Origin, In-transit and at Destination are fundamental best practices

Here at Western Growers Trade Practices, we encourage shippers to embrace a culture of best practices by putting in place every day procedures and protocols. As part of that mantra, we preach to document, document, and document. As a shipper, we know you strive every day to fulfill your customers’ expectations, on every sales transaction. ...

Deciphering the Boundary Lines: PACA Jurisdiction

Most shippers understand that goods must be sold in or in contemplation of interstate commerce for PACA to have jurisdiction. However, a common misconception is that fresh or frozen produce must cross state lines to qualify as being sold in or in contemplation of interstate commerce. That is not always the case.  In Steve Almquist ...

Trust But Verify: Get That 2nd Opinion on Problem Loads

As a produce shipper with a reported problem load at contract destination, you shouldn’t solely depend on your buyer informing you that he or she has already obtained an opinion from the Perishable Agricultural Commodities Act (PACA) regional office that it was a “shipper problem.” Many times, buyers will contact PACA for advice and an ...

Shipper Feedback Requested on PACA Modernization

The Perishable Agricultural Commodities Act (PACA), enacted in 1930, is a law that authorizes the regulation of the buying and selling of fresh and frozen fruits and vegetables in interstate and foreign commerce while suppressing unfair and fraudulent trading practices. While many aspects within the produce industry have evolved, e.g., farming practices, food safety integration, ...

How to manage rejected product? Maximize your return and properly document your claim for damages

Rejections at destination are inevitable, and the issues surrounding them are never pleasant. So you need to be prepared to take the emotion out of the situation, have your product moved in a timely manner and have it sold for the account of whom it may concern to maximize the return and protect your rights ...

Verbal and written contracts MUST have exact language to protect the shipper due to a failure to be able to harvest and ship

“I have a number of loads to ship in the coming week(s) with confirmed prices and P.O. numbers exchanged, however, due to the weather conditions I do not have product available to fulfill my commitment with the buyer. The buyer is threatening to buy against my account if I don’t supply him with the product ...

Shippers: Don’t Accept Buyer’s Photos as Proof of Product Condition

Using a smartphone, buyers can instantly text or email you photos of fruits or vegetables you sold upon arrival, ostensibly giving you an indisputable snapshot of the quality and condition of your product. While such images can be informative, they should not take the place of securing a USDA or Canadian Food Inspection Agency inspection ...

Best practices for determining and commencing a claim

As the saying goes, “Timing is everything” and that continues to ring true within your ability to quickly identify and pursue a claim against your buyer. The timing to commence a potential claim is not debatable; it should be when you first become aware of a problem with a shipment. It could be either a ...

Change is in the air: USDA inspection fee increase and WGA’s Matt McInerney retires

As we each work diligently within our respective operations to adopt new technologies and enhance best practices to make our lives easier, the U.S. Department of Agriculture (USDA) has been focused with the same approach in mind. With that being said, USDA has recently announced that the Specialty Crop Program will be raising inspection fees ...

Shipper Rights When a Breach of Contract is Claimed

What are a shipper’s rights when a buyer unloads and accepts their produce at the contract destination, but claims a breach of contract? It is imperative to remember these three facts: Once accepted (most commonly by the act of unloading) by an act of control, the buyer loses the right to subsequently reject and/or demand the ...