Minister McConalogue announces second annual online survey for primary producers in the food supply chain

Minister for Agriculture, Food and the Marine, Charlie McConalogue, today announced the launch of an online survey by the department’s Unfair Trading Practices Enforcement Authority.

Minister McConalogue said:

This is the second annual survey of primary producers, following an initial survey last year which assisted the Enforcement Authority to establish baseline levels of awareness of the UTP Regulations and to inform the issues of most concern to suppliers. This year’s survey of primary producers is looking to establish:

• current awareness of the UTP Regulations 2021, including understanding of the key protections afforded to suppliers under these regulations; and
• the extent to which unfair trading practices impact suppliers, and the factors that might influence suppliers to make a complaint

The survey is also seeking to establish baseline awareness levels of the key functions and role planned for An Rialálaí Agraibhia (the Agri-food Regulator), the new Office to be established under the Agricultural and Food Supply Chain Bill currently progressing through the Oireachtas.

The online survey results, along with the results of a separate phone survey of downstream agri-food business suppliers, will be processed anonymously by an independent market research company.

Further details on the survey can be found at www.utp.gov.ie.

The Minister signed S.I. No. 198/2021 - European Union (Unfair Trading Practices in the agricultural and food supply chain) Regulations 2021 (irishstatutebook.ie) on 28 April 2021.

These Regulations gave effect to the provisions of The Unfair Trading Practices (UTP) Directive (Directive (EU) 2019/633 of the European Parliament and of the Council of 17 April 2019in relation to business-to-business relationships in the agriculture and food supply chain.

The Regulations prohibit 16 unfair trading practices (UTPs) – 10 (black) UTPs which are prohibited in all circumstances and a further 6 (grey) UTPs which are prohibited unless the parties agree clearly and unambiguously beforehand. These are outlined in a UTP Summary Leaflet DL Final.pdf (utp.gov.ie) and listed below.

10 Black UTPs (prohibited in all circumstances)

1. Payment later than 30 days for perishable agricultural and food products.

2. Payment later than 60 days for other agricultural and food products.

3. Short-notice cancellations of perishable agricultural and food products.

4. Unilateral contract changes by the buyer.

5. Payment not related to a specific transaction.

6. Risk of loss and deterioration transferred to the supplier.

7. Refusal of written confirmation of a supply agreement by the buyer, despite request of the supplier.

8. Misuse of trade secrets by the buyer.

9. Commercial retaliation by the buyer.

10. Transferring the costs of examining customer complaints to the supplier.

6 Grey UTPs (prohibited unless the parties agree beforehand)

1. The buyer returns unsold products to the supplier without paying for those unsold products.

2. Payment by the supplier for stocking, display and listing.

3. Payment by the supplier for promotion.

4. Payment by the supplier for marketing.

5. Payment by the supplier for advertising.

6. Payment by the supplier for staff of the buyer, fitting out premises.

The Regulations afford protection for any supplier of agricultural and food products with a turnover of up to €350 million subject to the supplier’s turnover being lower than the buyer’s turnover within stated categories. The Regulations provide protection for five graduated levels of supplier turnover categories relative to the buyer up to the €350 million turnover limit.

Under the Regulations, a supplier is defined as an agricultural producer or any natural or legal person who sells agricultural and food products. A buyer is defined as any natural or legal person or any public authority who buys agricultural and food products. The Regulations apply only to business-to-business relationships and do not cover sales to consumers.

The UTP Regulations have been applicable since 1 July 2021 to supply agreements established since 28 April 2021 and, from 28 April 2022, all supply agreements, including those that were in place before 28 April 2021, must be in compliance with the Regulations.

The Enforcement Authority has established a dedicated website – www.utp.gov.ie – which contains useful resource materials and contact details including how suppliers can make a complaint to the Authority. A summary of the main findings of the 2022 surveys of primary producers and downstream business suppliers is also available on the website.

An Rialálaí Agraibhia (The Agri-Food Regulator) Establishment

The Agricultural and Food Supply Chain Bill was approved by Government for presentation to the Houses of the Oireachtas in November 2022 and is currently progressing through the legislative process.

This Bill, when enacted, will establish a new independent statutory Authority to be known as An Rialálaí Agraibhia (The Agri-Food Regulator). The enabling provisions in the Bill will provide for the transfer of responsibility of UTP enforcement functions from the department’s UTP Enforcement Authority to the remit of the Regulator, which is expected to occur at the time of commencement of the Act. The Bill will also grant the Regulator additional powers to promote fairness and transparency in the agricultural and food supply chain.