Groceries

Regulatory  Powers

There is provision in relation to the regulation of practices and agreements in the grocery goods sector. The Minister for Jobs, Enterprise and Innovation may make regulations in relation to certain aspects of the commercial relationships between grocery goods undertakings, having regard to certain specified considerations. The Minister may issue guidelines on the regulations.

The regulations may deal with

• the form of contract to be entered, the circumstances in which it may be varied, terminated and renewed
• the circumstances in which contracts for the  supply and delivery of grocery goods may be determined
• the manner in which terms, including those for payment of  goods, are to be incorporated;
• the manner in which payment for resolution of customer complaints may be determined between grocery goods undertakings;
• the conditions under which retailers may or may not require suppliers to obtain goods or services or property from a third-party, where the retailer obtains any payment for such arrangement
• provisions regarding delays and failures due to circumstances outside the control of a parties
• limitation of the circumstances in which payment may be sought from a grocery good undertaking for shrinkage, wastage and marketing costs;
• circumstances in which grocery goods undertaking may or may not charge a consideration for listing grocery goods

Matters Specified

The regulations may set out

• the manner in which forecasts for the supply of grocery goods are to be prepared and communicated;
• the circumstances in which relevant grocery goods undertaking may or may not seek payment from a supplier to secure better positioning or an increase in the allocation of shelf space for that supplier’s goods
• prohibition of a grocery goods undertaking from directly or indirectly compelling a grocery goods undertaking to make payment or consideration for the promotion or advertisement of grocery goods on the party’s premises
• provisions regarding the promotion of grocery goods
• limitations on compelling grocery goods undertakings to participate in promotions or similar activities;
• arrangements for the preparation of an annual compliance report in respect of the regulations by the grocery goods undertaking and for submission to the authority;
• maintenance of records and periods for which records are kept;
• the manner and timeframe in which payments for grocery goods  are to be made;
• designation and training arrangements for staff in relation to compliance documents which must be retained by the undertaking.

The regulations may only apply to contracts entered after the date of operation, and entry into effect of the regulations.

Investigation

There is provisions for investigation of compliance on the part of grocery undertakings by the Commission and for monitoring of compliance with the regulations.  Where the Commission has reasonable grounds for believing that the grocery goods undertaking has failed to comply with the regulations, it may investigate the potential breach.

It may investigate any complaints received in relation to such failure. The Commission may make preliminary inquiries for the purpose of deciding whether an investigation is appropriate.  It may request the complainant to provide further written particulars of the complaint. The Commission may decide to discontinue any investigation if the requisite information is not supplied.

Contravention Notice

There is a provision for the issue of a contravention notice by the Commission where it is of the opinion that the relevant grocery goods undertaking is contravening any provisions of regulations made.  An authorised officer may issue a contravention notice requiring remediation of the contravention specified.  There is provision for appeal by the undertaking against the contravention notice.

Failure to comply with a contravention notice is an offence.  Failure to comply with the regulations is an offence.  It may be prosecuted summarily or on indictment.  There is provision for continuing fines where the offence continues. The fine on summary conviction is up to €3,000 or six months in prison or equivalent. There are fines for subsequent offences of €5000 and 12 months, respectively.  On indictment, the fines are respectively €60,000 and €100,000, with the possibility of imprisonment for 18 months or 24 months in each case.

Any person who is aggrieved by failure to comply with the relevant grocery goods undertaking of any regulations or with the compliance notice has a right of action against the relevant grocery goods undertaking in the Circuit Court.

2014 Act

The 2014 Act amends Part 3 of the Consumer Protection Act 2007 by inserting a new Part on Grocery Goods Undertakings. The  Minister for Jobs, Enterprise and Innovation may make regulations in respect of certain aspects of the commercial relationships between relevant grocery goods undertakings and specifies

• those matters on which the Minister may make such regulations (including the form of contract to be entered into;
• the circumstances in which a contract may be varied, terminated or renewed;
• the circumstances in which the arrangements of the contract for supply and delivery of grocery goods may be varied;
• the manner in which specific terms such as payment or sale of goods on promotion are to be incorporated into contracts for the sale or supply of grocery goods; the manner in which payment for the resolution of a customer complaint may be determined between grocery goods undertakings;
• the conditions under which retailers may or may not require suppliers to obtain any goods, services or property from a third party where the retailer obtains any payment for such an arrangement; provisions relating to delays and failures due to circumstances outside the reasonable control of a party;
• limitation on the circumstances in which payment may be sought from a grocery goods undertaking for shrinkage, wastage or marketing costs;
• the circumstances in which a relevant grocery goods undertaking may or may not charge a consideration for listing grocery goods;
• set out the manner in which forecasts for the supply of grocery goods are to be prepared and communicated; specify the circumstances in which a relevant grocery goods undertaking may or may not seek payment from a supplier to secure better positioning or an increase in the allocation of shelf space for that supplier’s goods;
• to prohibit a relevant grocery goods undertaking from directly or indirectly compelling a grocery goods undertaking to make any payment or consideration for the promotion or advertisement of grocery goods on that party’s premises;
• provide for further arrangements regarding promotions of grocery goods;
• specify limitations for compelling grocery goods undertakings to participate in promotions or similar activities in support of grocery goods; specify the arrangements for the preparation of an annual compliance report with these  regulations by the relevant grocery goods undertaking and for submission to the statutory authority; provide for the maintenance of records and the period for which those records are held relating to compliance activities by the relevant grocery goods undertaking;
• the manner and timeframe in which payments for grocery goods supplied to relevant grocery goods undertakings are to be made;
• designation and training arrangements for staff in relevant grocery goods undertakings; the nature and type of documents that must be retained by a relevant grocery goods undertaking and the length of time they should be kept).

The Minister may issue guidelines on the regulations.

Compliance

There is provision for the inspection and investigation of relevant Grocery Goods Undertakings by the CCPC to monitor compliance with any regulations. It also provides that where the CCPC has reasonable grounds for believing that a relevant grocery goods undertaking has failed or is failing to comply with the regulations, it may investigate the potential breach or any complaints it receives in relation to any such alleged failure.

Provision is also made to allow the CCPC to make preliminary enquiries for the purposes of deciding whether the investigation of a complaint is justified and to request the complainant to provide further written particulars of the complaint within a specified time period. Provision is also made to allow the CCPC decide to discontinue any such investigation if the complainant fails to supply the requested information and to notify the complainant in writing of any decision not to investigate or discontinue an investigation, together with the reasons for this decision.

The CCPC may decide not to investigate a complaint in certain circumstances (e.g. it considers the complaint is vexatious or trivial). CCPC may issue contravention notices where it is of the opinion that a relevant grocery goods undertaking is contravening or has contravened any provision of any regulations. Provision is made for an authorised officer to issue a contravention notice to a relevant grocery goods undertaking to remedy the contravention by a date specified. There is an appeal by the relevant grocery goods undertaking to any such contravention notice.

Offences

The failure to comply with a contravention notice constitutes an offence. The Section also makes it an offence to fail to comply with any regulations. Sanctions for such offences may be pursued summarily or on indictment with fines as follows.

A person guilty of an offence under the Act is liable on summary conviction to the following fines and penalties: (a) on a first summary conviction for any such offence, to a

• fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both;
•  on any subsequent summary conviction for the same offence to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both.

If, after being convicted of an offence, the person continues to contravene the requirement or prohibition to which the offence relates, the person is guilty of  a further offence on each day that the contravention continues and for each such offence is liable on summary conviction to a fine not exceeding €500.

A person guilty of an offence is liable on conviction on indictment to the following fines and penalties:

• on a first conviction on indictment for any such offence, to a fine not exceeding €60,000 or imprisonment for a term not exceeding 18 months or both;
• on any subsequent conviction on indictment for the same offence to a fine not exceeding €100,000 or imprisonment for a term not exceeding 24 months or both.’

Anyone who is aggrieved by the failure of a relevant grocery goods undertaking to comply with any regulations or with any compliance notice, shall have the right of action for relief against that relevant grocery goods undertaking in the Circuit Court (any such relief, including exemplary damages, not being in excess of the limits of the jurisdiction of the Circuit Court in an action founded on tort).

There is power of the CCPC to publish a list of relevant grocery goods undertakings who have been found guilty of contravening the regulations against which  contravention notices have issued

There is  procedure for redress for employees who are impacted by breach of the protection of persons who report breaches of relevant statutory provisions and provides for offences for false reporting of alleged breaches.