USDA Reiterates Antitrust Law Applicability to Marketing Order Activities

Excerpt from: Sandler, Travis & Rosenberg Trade | July 30 2015

The Department of Agriculture’s Agricultural Marketing Service has issued a final rule that, effective July 31, amends the general regulations for federal fruit, vegetable and specialty crop marketing agreements and marketing orders to accentuate the applicability of U.S. antitrust laws to marketing order programs’ domestic and foreign activities.

AMS states that federal marketing order boards and committees have always been subject to U.S. antitrust laws. This rule accentuates the applicability of these laws to such individuals in light of changing global marketing and production trends and advises boards and committees of the restrictions, limitations and liabilities of those laws.

Specifically, the rule states that members and employees of federal marketing order boards and committees are immune from prosecution under U.S. antitrust laws only insofar as their conduct in administering the respective marketing order is authorized by the Agricultural Marketing Agreement Act of 1937 or the provisions of the respective order. Under the antitrust laws, committee members and employees may not engage in any unauthorized agreement or concerted action that unreasonably restrains U.S. domestic or foreign commerce.

For example, they have no authority to participate, either directly or indirectly, whether on an informal or formal, written or oral basis, in any bilateral or international undertaking or agreement with any competing foreign producer or seller or with any foreign government, agency or instrumentality acting on behalf of competing foreign producers or sellers to raise, fix, stabilize or set a floor for commodity prices or to limit the quantity or quality of commodity imported into or exported from the U.S. Participation in any such unauthorized agreement or joint undertaking could result in prosecution by the Department of Justice and/or suit by injured private persons seeking treble damages.

It could also result in the expulsion of members from the committee or termination of employment with the committee.