Seven Fields Operations Pty Ltd Trading as Nutrano Produce

The Australian Competition and Consumer Commission (ACCC) has accepted a court enforceable undertaking from Seven Fields Operations Pty Ltd trading as Nutrano (Nutrano).

This undertaking relates to alleged contraventions of clauses 12 and 29 of the Competition and Consumer (Industry Codes – Horticulture) Regulations 2017 (Cth) (the Horticulture Code) and section 51ACB of the Competition and Consumer Act 2010.

Nutrano operates a packing house and wholesale horticulture business, acting as an agent for a number of citrus growers based in Victoria and Queensland.

Between July 2020 and June 2022, Nutrano traded in horticulture produce with horticulture produce agreements (HPA) that did not adequately specify:

• the quality requirements and the specifications that were used to determine the quality of produce, including for produce that was pooled for sale;
• the consequences for produce that did not meet Nutrano’s quality requirements; and
• the reporting period for which Nutrano would report to the grower on matters set out in clause 29 of the Horticulture Code, which includes the dates of sale of produce, the type and quantity of produce sold, and the price received for produce sold.

For the 2022 season, Nutrano:

• published Terms of Trade which failed to adequately specify the quality requirements for produce; and
• failed to specify in some of its grower statements the price received for produce sold and the amounts that Nutrano deducted from that price (such as fees or commissions).

Nutrano has acknowledged that its conduct, as described above, likely contravened clauses 11, 12, 16, 23 and 29 of the Horticulture Code, and by doing so, has likely contravened section 51ACB of the CCA.

Nutrano’s standard form HPA also provided it with a wide discretion to change produce specifications and to store the grower’s produce before its sale, which could have resulted in the produce being downgraded and disposed of by Nutrano. Nutrano has acknowledged the ACCC’s concerns that these terms in the HPA may have been unfair within the meaning of section 24 of the Australian Consumer Law.

In response to the ACCC’s concerns, Nutrano provided the ACCC with a section 87B undertaking that includes commitments to:

• review and update its HPA to comply with subclauses 16(h)-(j) of the Horticulture Code, and to provide a copy of that HPA to its growers within 3 months of the Undertaking;
• send revised grower statements for the 2022 season, which will state the price received for produce sold, to impacted growers; and
• establish and implement a compliance program, which includes appointing a compliance officer and conducting regular staff training on Nutrano’s obligations under the Horticulture Code.

Nutrano has also paid two infringement notices totalling $24,850 in relation to the non-compliant HPAs and grower statements.