{"id":28241,"date":"2023-10-26T07:10:01","date_gmt":"2023-10-26T07:10:01","guid":{"rendered":"https:\/\/legalblog.ie\/?p=28241"},"modified":"2024-02-27T11:40:55","modified_gmt":"2024-02-27T11:40:55","slug":"agri-food-trading","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/agri-food-trading\/","title":{"rendered":"Agri-Food Trading"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/agri-food-trading\/#Unfair_Trading_Practices\" title=\"Unfair Trading Practices\">Unfair Trading Practices<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/agri-food-trading\/#Power_to_make_regulations\" title=\"Power to make regulations.\">Power to make regulations.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/agri-food-trading\/#Regulations_prohibited_payments\" title=\"Regulations: prohibited payments\">Regulations: prohibited payments<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/agri-food-trading\/#Regulations_changes_of_supply_terms\" title=\"Regulations: changes of supply terms\">Regulations: changes of supply terms<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/agri-food-trading\/#Regulations_contracts\" title=\"Regulations: contracts\">Regulations: contracts<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/agri-food-trading\/#Regulations_Implied_Terms_Unfair\" title=\"Regulations; Implied Terms &amp; Unfair\">Regulations; Implied Terms &amp; Unfair<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/agri-food-trading\/#Regulation_of_Contract_Arrangements\" title=\"Regulation of Contract Arrangements\">Regulation of Contract Arrangements<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/agri-food-trading\/#Regulations_Supply_conditions\" title=\"Regulations: Supply conditions\">Regulations: Supply conditions<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/agri-food-trading\/#Regulations_commercial_malpractice\" title=\"Regulations: commercial malpractice\">Regulations: commercial malpractice<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/agri-food-trading\/#Records_Training\" title=\"Records &amp; Training\">Records &amp; Training<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-11\" href=\"https:\/\/legalblog.ie\/agri-food-trading\/#Other_Provisions\" title=\"Other Provisions\">Other Provisions<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Unfair_Trading_Practices\"><\/span>Unfair Trading Practices<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The 2023 Act provides for the prohibition of certain unfair training practices and the enforcement thereof.\u00a0The unfair trading practices shall apply to anything done in relation to an agricultural and food product in the course of a business-to-business relationship and that the Minister may by regulations specify what matters are to be treated as such.<\/p>\n<p>The Minister has\u00a0 the power to make regulations about business-to-business relationships under the Act. It details items the Minister must take into consideration and have due regard for before issuing such regulations which will be known as \u201cthe Agri-Food Unfair Trading Regulations\u201d. The Unfair Trading Practices included in SI 198 of 2021 have been provided for in the regulation making powers.<\/p>\n<p>The Act provides for types of Unfair Trading Practices specifically relating to payments including:<\/p>\n<ul>\n<li>late payments<\/li>\n<li>payments not related to the sale of the agricultural and food products.<\/li>\n<li>payment for deterioration or loss of products<\/li>\n<li>charges for stocking, displaying or listing products, or fitting out.<\/li>\n<li>charges for making products available on the market.<\/li>\n<li>the cost of any discounts sold by the buyer as part of a promotion.<\/li>\n<li>a charge for advertising or marketing by the buyer<\/li>\n<li>payment of compensation for the cost of examining customer complaints<\/li>\n<\/ul>\n<p>The Act regulates changes of supply terms including short notice cancellations of orders of perishable products and defines \u201cperishable\u201d agricultural and food products as meaning products that, by their nature or at their stage of processing, are liable to become unfit for sale within 30 days after harvest, production or processing. The unilateral change to certain terms of a supply agreement.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Power_to_make_regulations\"><\/span>Power to make regulations.<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Minister may make regulations about business-to-business relationships in the agricultural and food supply chain (which may, in particular, include provision prohibiting specified practices).<\/p>\n<p>The Minister may prohibit a practice in the Agri-Food Unfair Trading Regulations only if satisfied that the practice\u2014<\/p>\n<ul>\n<li>deviates from good commercial conduct, by reason of being contrary to good faith and fair dealing or by reason of being unilaterally imposed by one trading partner on another,<\/li>\n<li>imposes an unjustified and disproportionate transfer of economic risk from one trading partner to another, or<\/li>\n<li>imposes a significant imbalance of rights and obligations on one trading partner.<\/li>\n<\/ul>\n<p>The Minister may make provision in Agri-Food Unfair Trading Regulations only if satisfied that it is appropriate having regard to\u2014<\/p>\n<ul>\n<li>the desirability of the promotion of competitive trade in business-to-business relationships in the agricultural and food supply chain,<\/li>\n<li>the interests of users and consumers of agricultural and food products, in particular in relation to quality, value for money and access to choice,<\/li>\n<li>the importance of trading partners in the agricultural and food supply chain conducting their trading relationships in good faith and in a fair, open and transparent manner,<\/li>\n<li>the importance of maintaining freedom of contract between trading partners in the agricultural and food supply chain,<\/li>\n<li>the importance of providing trading partners in the agricultural and food supply chain with reasonable certainty in respect of the risks and costs of trading,<\/li>\n<li>the economic importance to the State of the production, manufacture, processing, supply, distribution, wholesale, retail and food service sectors in respect of agricultural and food products,<\/li>\n<li>the impact on the development and maintenance of strong, innovative, efficient and competitive production, manufacturing, processing and supply bases in the agricultural and food sector,<\/li>\n<li>the impact on the development and maintenance of competitive retail and food service sectors in respect of agricultural and food products,<\/li>\n<li>the desirability of addressing the imbalance where the larger or more powerful trading partner seeks to introduce certain practices or contractual arrangements which are to that party\u2019s advantage,<\/li>\n<li>the potential for the distortion of competition in trade in the agricultural and food sector including ancillary services, and<\/li>\n<li>the importance of limiting the impact on the use of fair and efficiency-creating agreements agreed between parties.<\/li>\n<\/ul>\n<h3><span class=\"ez-toc-section\" id=\"Regulations_prohibited_payments\"><\/span>Regulations: prohibited payments<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Agri-Food Unfair Trading Regulations may prohibit a late payment for agricultural and food products (whether or not perishable). Agri-Food Unfair Trading Regulations may prohibit a payment that is not related to the sale of the agricultural and food products.<\/p>\n<p>The Agri-Food Unfair Trading Regulations may prohibit a payment for deterioration or loss of products occurring on the buyer\u2019s premises or after ownership has been transferred to the buyer, unless the deterioration or loss is caused by the negligence or other fault of the supplier. \u00a0Agri-Food Unfair Trading Regulations may prohibit a charge for stocking, displaying or listing products, or for making products available on the market.<\/p>\n<p>Agri-Food Unfair Trading Regulations may<\/p>\n<ul>\n<li>prohibit a requirement for the supplier to bear all or part of the cost of any discounts on agricultural and food products that are sold by the buyer as part of a promotion unless the buyer, prior to a promotion that is initiated by the buyer, specifies the period of the promotion and the expected quantity of the agricultural and food products to be ordered at the discounted price.<\/li>\n<li>prohibit a charge for advertising or marketing by the buyer.<\/li>\n<li>prohibit a charge on the supplier for fitting-out premises used for the sale by the buyer of the supplier\u2019s products.<\/li>\n<li>prohibit payment of compensation for the cost of examining customer complaints relating to the sale of the supplier\u2019s products, in the absence of negligence or fault on the part of the supplier.<\/li>\n<li>limit the circumstances in which a buyer may seek payment from a supplier in respect of marketing costs.<\/li>\n<\/ul>\n<p>The may prohibit a buyer from directly or indirectly compelling a supplier to make a payment \u00a0in respect of a promotion of products of a supplier in the premises of the buyer, \u00a0for the advertising or display of products of the supplier in the premises of the buyer, or \u00a0to retain shelf space, or to secure better positioning on shelves, or an increase in the allocation of shelf space, for the products of that supplier.<\/p>\n<p>Agri-Food Unfair Trading Regulations may specify the circumstances in which a buyer may, or may not, seek payment from a supplier for the purchase of products for resale by the buyer from the supplier. They may specify the circumstances in which a buyer who is a retailer or wholesaler may, or may not, seek payment from a supplier to\u2014<\/p>\n<ul>\n<li>retain shelf space for the products of the supplier,<\/li>\n<li>secure better positioning on shelves for those products, or<\/li>\n<li>secure an increase in the allocation of shelf space.<\/li>\n<\/ul>\n<p>Agri-Food Unfair Trading Regulations may specify that, where a payment is required by a buyer for the situations referred to above , if requested by the supplier, the buyer shall provide the supplier with an estimate in writing of the payments per unit or the overall payments, whichever is appropriate, and, insofar as the situations referred are concerned, shall also provide, in writing, an estimate of the cost to the supplier and the basis for that estimate.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Regulations_changes_of_supply_terms\"><\/span>Regulations: changes of supply terms<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Agri-Food Unfair Trading Regulations may prohibit short notice cancellations of orders of perishable products. \u201cPerishable\u201d, in relation to agricultural and food products, means products that, by their nature or at their stage of processing, are liable to become unfit for sale within 30 days after harvest, production or processing.<\/p>\n<p>Agri-Food Unfair Trading Regulations may prohibit a unilateral change to the terms of a supply agreement that concern\u2014<\/p>\n<ul>\n<li>the frequency, method, place, timing or volume of the supply or delivery of a product,<\/li>\n<li>quality standards,<\/li>\n<li>price or terms of payment, or<\/li>\n<li>the provision of services ancillary to the sale of agricultural and food products.<\/li>\n<\/ul>\n<h3><span class=\"ez-toc-section\" id=\"Regulations_contracts\"><\/span>Regulations: contracts<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Agri-Food Unfair Trading Regulations may prohibit a refusal to confirm in writing the terms of a supply agreement. They may specify forms of contract to be used in relation to specify transactions, or aspects of transactions, between buyers and sellers in the agricultural and food supply chain. They may provide for\u2014<\/p>\n<ul>\n<li>the manner in which forecasts for the supply of products are to be prepared, and<\/li>\n<li>the communication of the basis on which they are prepared.<\/li>\n<\/ul>\n<p>Agri-Food Unfair Trading Regulations may specify the means, including the provision of written notice, by which a contract for the sale or supply of products may be<\/p>\n<ul>\n<li>varied,<\/li>\n<li>terminated,<\/li>\n<\/ul>\n<p>Agri-Food Unfair Trading Regulations may specify circumstances in which arrangements relating to the supply or delivery of products, including the frequency and timing of supply or delivery, may be varied.<\/p>\n<p>Agri-Food Unfair Trading Regulations may require certain terms and conditions to be incorporated expressly into written contracts for the sale or supply of products, or may provide for certain terms and conditions to be incorporated by implication into written or oral contracts for those purposes, including terms and conditions in relation to\u2014<\/p>\n<ul>\n<li>payment for products supplied to a relevant buyer,<\/li>\n<li>the ordering, supply, price, marketing and sale of goods on promotion and the duration of the promotion,<\/li>\n<li>the circumstances in which wastage that occurs at the premises of a relevant buyer is to be considered as due to the negligence or fault of the supplier, where a contract provides for payment arising from the negligence or fault of the supplier, and<\/li>\n<li>the circumstances and manner in which a buyer may require a supplier to make any payment, either directly or indirectly, towards the resolution of a customer complaint.<\/li>\n<\/ul>\n<h3><span class=\"ez-toc-section\" id=\"Regulations_Implied_Terms_Unfair\"><\/span>Regulations; Implied Terms &amp; Unfair<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Agri-Food Unfair Trading Regulations may provide that a buyer shall not enter into or renew any contract for the sale or supply of products unless the contract includes terms and conditions specified in Agri-Food Unfair Trading Regulations about the following:<\/p>\n<ul>\n<li>the conditions under which a buyer may, or may not, directly or indirectly require a supplier to obtain any goods or services from a third party if the relevant buyer receives payment for the arrangement;<\/li>\n<li>in relation to delays or failures in performance of a contract for the sale or supply of products resulting from circumstances beyond the reasonable control of a party\u2014the extent of the liability of the party, and the actions that may or shall be taken by the parties to the contract in such circumstances.<\/li>\n<\/ul>\n<p>Agri-Food Unfair Trading Regulations may provide that a trading practice is unfair\u2014<\/p>\n<ul>\n<li>unless provided for in clear and unambiguous terms in supply or subsequent agreements, or<\/li>\n<li>even if provided for in clear and unambiguous terms in supply or subsequent agreements.<\/li>\n<\/ul>\n<h3><span class=\"ez-toc-section\" id=\"Regulation_of_Contract_Arrangements\"><\/span>Regulation of Contract Arrangements<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Act provides for the regulation of contract arrangements including but not limited to:<\/p>\n<ul>\n<li>a refusal to confirm in writing the terms of a supply agreement,<\/li>\n<li>forms of contract to be used,<\/li>\n<li>forecasts for the supply of products,<\/li>\n<li>arrangements relating to the delivery of products,<\/li>\n<li>the means, including the provision of written notice, by which a contract for the sale or supply of products may be varied, terminated, or<\/li>\n<li>arrangements for the supply or delivery of products<\/li>\n<li>payment, promotion, wastage, resolution of a customer<\/li>\n<\/ul>\n<p>Regulations may provide for the supply conditions including in regard to<\/p>\n<ul>\n<li>the manner and timeframe in which payments are to be made,<\/li>\n<li>the return of products without payment,<\/li>\n<li>a buyer requiring a supplier to obtain any goods or services from a third party,<\/li>\n<li>arrangements regarding promotions of products and related<\/li>\n<\/ul>\n<h3><span class=\"ez-toc-section\" id=\"Regulations_Supply_conditions\"><\/span>Regulations: Supply conditions<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Agri-Food Unfair Trading Regulations may specify the manner and timeframe in which payments for agricultural and food products supplied to relevant trading partners in the agricultural and food supply chain are to be made.<\/p>\n<p>Agri-Food Unfair Trading Regulations may prohibit the return of unsold agricultural and food products without paying\u2014for those unsold products, or for the disposal of those products.<\/p>\n<p>Agri-Food Unfair Trading Regulations may<\/p>\n<ul>\n<li>specify conditions under which a buyer may, or may not, directly or indirectly require a supplier to obtain any goods or services from a third party from whom the buyer receives payment for this arrangement.<\/li>\n<li>specify arrangements regarding promotions of products and related activities and the circumstances in which such arrangements shall or may be included in the contract for the sale or supply of products.<\/li>\n<li>provide for limitations on the obligation of suppliers to participate in promotions by buyers or similar activities.<\/li>\n<li>prohibit a buyer from requiring a supplier to obtain any goods or services from a third party if the buyer receives payment for the arrangement.<\/li>\n<\/ul>\n<h3><span class=\"ez-toc-section\" id=\"Regulations_commercial_malpractice\"><\/span>Regulations: commercial malpractice<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Agri-Food Unfair Trading Regulations may prohibit specified classes of misuse of trade secrets.<\/p>\n<p>Agri-Food Unfair Trading Regulations may prohibit an act of commercial retaliation against the supplier if the supplier exercises its contractual or legal rights, including the right to file a complaint, or cooperate, with an enforcement authority. Agri-Food Unfair Trading Regulations: compliance requirements. They may specify arrangements for\u2014<\/p>\n<ul>\n<li>the preparation by a buyer or supplier of an annual compliance report in respect of compliance with Agri-Food Unfair Trading Regulations, and<\/li>\n<li>the submission of annual compliance reports to the regulator.<\/li>\n<\/ul>\n<h3><span class=\"ez-toc-section\" id=\"Records_Training\"><\/span>Records &amp; Training<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Agri-Food Unfair Trading Regulations may require the maintenance of specified records by trading partners in the agricultural and food supply chain in relation to the sale or supply of products. They may specify\u2014<\/p>\n<ul>\n<li>the nature or type of information, documents or records that are to be maintained and kept by trading partners in the agricultural and food supply chain, and<\/li>\n<li>the length of time for which information, documents or records shall be kept.<\/li>\n<\/ul>\n<p>They may make provision about the designation and training of staff in trading partners in the agricultural and food supply chain to be responsible for\u2014<\/p>\n<ul>\n<li>coordination of compliance with Agri-Food Unfair Trading Regulations, and<\/li>\n<li>the dissemination of information to other staff about the implementation of Agri\u2011Food Unfair Trading Regulations.<\/li>\n<\/ul>\n<h3><span class=\"ez-toc-section\" id=\"Other_Provisions\"><\/span>Other Provisions<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Agri-Food Unfair Trading Regulations: ancillary provisions<\/p>\n<p>Agri-Food Unfair Trading Regulations may include transitional provisions (including provision relating to the contracts for the sale or supply of products to which Agri\u2011Food Unfair Trading Regulations apply).<\/p>\n<p>Agri-Food Unfair Trading Regulations may specify<\/p>\n<ul>\n<li>the turnover disparity between buyers and suppliers at which a trading practice becomes unfair (which may include thresholds).<\/li>\n<li>specify categories of buyers and suppliers, or of products, in respect of which particular unfair trading practices apply.<\/li>\n<\/ul>\n<p>They may include provision relating to services, ancillary to the sale of products, provided by the buyer to the supplier.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-28241\" data-postid=\"28241\" class=\"themify_builder_content themify_builder_content-28241 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Unfair Trading Practices The 2023 Act provides for the prohibition of certain unfair training practices and the enforcement thereof.\u00a0The unfair trading practices shall apply to anything done in relation to an agricultural and food product in the course of a business-to-business relationship and that the Minister may by regulations specify what matters are to be [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[264],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/28241"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=28241"}],"version-history":[{"count":7,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/28241\/revisions"}],"predecessor-version":[{"id":30193,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/28241\/revisions\/30193"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=28241"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=28241"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=28241"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}