Traders (that is, agents or merchants) of horticultural produce need to be aware of proposed further audit and enforcement action by the Australian Competition and Consumer Commission (ACCC) for failure to comply with the mandatory Horticulture Code of Conduct.
The ACCC’s Agriculture Unit has, in April 2022, indicated that its audits have identified that some wholesalers are not meeting their legal obligations under the Horticulture Code.
Common breaches of the law that the ACCC has identified during its audits primarily relate to wholesalers:
- incorrectly reporting prices in their statements to growers (the Horticulture Code requires wholesalers to report the prices they pay growers for produce and the prices they on-sell that produce for); and
- failing to make their terms of trade publicly available, as required by the Horticulture Code.
The ACCC has indicated that it is planning to issue updated industry guidance shortly, following which it will conduct further audits and strongly consider enforcement action where it identifies non-compliance.
Penalties for non-compliance with the mandatory Horticulture Code may involve the ACCC issuing a warning, commencing an investigation into conduct, issuing an infringement notice or initiating legal proceedings. Financial penalties of up to $66,000 apply in relation to breaches of certain provisions of the Horticulture Code.
Importantly, the Horticulture Code does not exempt merchants that on-sell horticulture produce to a related business.
Brokers, traders, agents, merchants and wholesalers of horticultural produce would be well-advised to review their practices to ensure that they do not breach the Horticulture Code.
This Alert is intended as general information only. It does not purport to be comprehensive advice or legal advice. Readers must seek professional advice before acting in relation to these matters.
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