Total Food Network pays penalties for alleged Horticulture Code breaches

ACCC

APMS NQ Pty Ltd trading as the Total Food Network Australia (Total Food) has paid $27,500 in penalties after the ACCC issued it with two infringement notices for alleged contraventions of the Horticulture Code.

The ACCC alleges that Total Food contravened the Horticulture Code by failing to enter a horticulture produce agreement (HPA) and failing to prepare its terms of trade and make them publicly available.

“This agreement is a central requirement that must be in place before a grower and trader can start trading, as it sets out the key terms and conditions, including action the grower can take if there is a dispute,” said ACCC Deputy Chair Mick Keogh.

“The publishing of the terms of trade ensures greater transparency and allows growers to compare the trading terms with other wholesalers.”

The ACCC issued Total Food with two infringement notices, one for allegedly not publishing its terms of trade, and one for allegedly trading in horticulture produce without an HPA.

“We started to investigate Total Food after conducting our annual compliance checks of the Horticulture Code,” Mr Keogh said.

The ACCC shifted from focusing on education and compliance activities to greater enforcement of the code when the ACCC updated its guidance of the Horticulture Code in August 2022.

Total Food is the fifth trader to have paid a penalty in relation to alleged breaches of the Horticulture Code since June 2023.

In December 2023, Getfresh Merchants Pty Ltd – paid penalties totalling $43,150 after being issued with three infringement notices by the ACCC, one for an alleged failure to publish and make publicly available their terms of trade and two infringement notices for two instances of allegedly trading without an HPA.

In October 2023, Nutrano paid penalties totalling $24,850 after the ACCC issued it with two infringement notices, one for an allegedly non-compliant HPA and one for allegedly not reporting sales price (acting as an agent). The ACCC also accepted a court-enforceable undertaking, in which Nutrano committed to provide growers with updated statements for the 2022 season, stating the price Nutrano received for the grower’s produce.

In July 2023, Bache Bros paid a penalty of $13,750 after the ACCC issued it with one infringement notice in relation to an alleged failure to make its terms of trade publicly available.

In June, 2023, Green Endeavour paid a penalty of $13,750 after the ACCC issued it with one infringement notice in relation to an alleged failure to publish and make its terms of trade publicly available.

“We will continue to monitor traders’ compliance with their obligations under the Code and will take further enforcement action where appropriate,” Mr Keogh said.

Background

Total Food Network Australia is a trading partnership owned by APMS NQ Pty Ltd and Jewelblest Pty Ltd, who are both wholly owned by Total Food Network Pty Ltd.

The Horticulture Code is a mandatory industry code prescribed under the Competition and Consumer Act 2010. The current version of the code came into full effect in 2018.

The key requirements of the Code include that horticulture produce must be sold under a compliant horticulture produce agreement, and that traders must publish their terms of trade and provide growers with statements for the sale of their produce.

The ACCC’s enforcement options include administrative resolutions, court-enforceable undertakings, infringement notices and, for certain breaches, commencing civil penalty proceedings.

Note

The payment of a penalty specified in an infringement notice is not an admission of a contravention of a mandatory industry code or the Australian Consumer Law.

The ACCC can issue an infringement notice when it has reasonable grounds to believe a person or business has contravened certain provisions in industry codes.

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