2021 ACCC Priorities – Horticultural Code of Conduct

The Horticulture Code of Conduct is a mandatory industry code prescribed under the Competition and Consumer Act 2010, and we’re expecting increased enforcement activity from the Australian Competition and Consumer Commission (ACCC) in 2021 in line with ACCC’s continued concerns about the supply of perishable agriculture products and agricultural supply chain arrangements generally.

Background to the Code

The Code aims to improve the clarity and transparency of trading arrangements between growers and traders in the horticulture sector.

Horticulture growers and traders (both merchants and agents) must comply with the Code unless they are purchasers of horticulture produce who sell directly to consumers. 

Horticulture produce is unprocessed fruit, vegetables (including mushrooms and other edible fungi), nuts, herbs and other edible plants, but excludes nursery products

Broadly, the Code:

• prohibits trading in horticulture produce without a horticulture produce agreement

• specifies a number of record keeping requirements for parties to an agreement

• requires a payment period to be specified and traders to pay growers within the payment period

• introduces an obligation for all parties to act in good faith in their dealings with each other

Compliance Risk areas

For Traders, the standard terms and conditions under which the trader is prepared to trade with growers and must comply with the Code and contain certain specific information.

The Code can also influence more complex arrangements where traders pool horticulture produce under an agreement with other produce. 

The Code also requires horticulture produce agreements to specify the FreshSpecs Produce Specifications or other specifications that will be used to assess the quality of horticulture produce.

Parties subject to the code should be aware that The ACCC can ask parties covered by the code for information or documents they are required to keep, generate or publish under the code, and the ACCC can seek penalties for a number of breaches of the Code, including failure to deal in good faith.

For further information please contact:

Paul Gray
Principal
T: 03 5225 5231
M: 0414 195 886
E: pgray@ha.legal

Rod Payne
Principal
T: 03 5226 8541
M: 0407 268 541
E: rpayne@ha.legal