UK: Groceries Code Adjudicator - BIS Announces Long-Awaited Details of GSCOP Enforcer

On 3 August 2010, the Department for Business, Innovation and Skills (BIS) published the government's response to a February 2010 consultation on plans to establish a body to monitor and enforce compliance with the Groceries Supply Code of Practice (GSCOP).  On 26 July 2010, a draft BIS Structural Reform Plan had revealed that the enforcement body's title will be "Groceries Code Adjudicator" (GCA) and also set out a broad legislative timetable (see our earlier  Law-Now).  The more recent consultation response document provides more detail on the GCA's likely identity and powers and also indicates how access to the GCA and its procedures may in future operate.

Who will be the Groceries Code Adjudicator?

A GSCOP enforcer or "ombudsman" was originally recommended in the 30 April 2008 Competition Commission groceries market investigation report.  BIS has decided that the role of ombudsman is suited more to redress mechanisms for individuals and that it is more appropriate to describe a body regulating business-to-business relations as an "adjudicator". 

The GCA will be established within the Office of Fair Trading (OFT), but it will have decisional autonomy and will act independently of the OFT Executive. The GCA will, therefore, be separate from the OFT's normal competition and consumer activities. The government believes that, given the OFT's experience in the groceries sector, the GCA can be established within the OFT in a way that makes it effective and robust. This is in line with the 18 May 2010 Coalition Government Programme.

The GCA will not immediately have the power to impose financial sanctions, although the primary legislation to establish the GCA will provide for the possibility of financial penalties being introduced at a later stage if the risk of damage to reputation does not prove to be a sufficient deterrent.

BIS has confirmed its intention (stated in the draft Structural Reform Plan) to publish a draft Adjudicator Bill later this year, ideally in the second Session of Parliament, and to implement primary legislation in November 2012.  BIS has also stated an intention to review the effectiveness of the GCA at least three years into its lifespan.

What will be the GCA's Role?

The GCA's proposed duties can be summarised as follows:

  • To arbitrate in disputes arising under GSCOP between retailers subject to GSCOP and suppliers.
  • To receive complaints alleging GSCOP breaches and where necessary to conduct investigations.
  • To publish reports at the end of investigations.
  • To make recommendations to relevant retailers on how to improve compliance with GSCOP and to monitor the progress of such recommendations.
  • To publish guidance on the operation of GSCOP provisions.
  • To publish an annual report on the operation of GSCOP, including providing details of disputes resolved and investigations undertaken.
  • To promote awareness of its role throughout the supply chain and monitor the sector for any emerging practices which may be problematic under GSCOP.
  • In addition, the GCA should be able to recommend changes to GSCOP.

What will be the Procedures for GSCOP Enforcement?

The government has also provided detail on GCA investigations:

  • Complaints to the GCA must be made within a specific time of the occurrence of the alleged breach.
  • Complaints may be anonymous, but must be evidenced-based.
  • The GCA will not be obliged to investigate every complaint that it receives.  It will act upon receipt of a complaint or on information in the public domain, where there is actual evidence of a potential breach. 
  • Prior to an investigation, the GCA must inform the relevant party concerned of the general nature of the practices that it intends to investigate and, in addition, provide a reasonable time for it to respond.
  • The GCA will be given the powers necessary to require parties to provide information within a reasonable period.  
  • Trade associations, NGOs and other organisations will not be able to bring complaints, which must come direct from the business affected, but will still have a significant advisory role.
  • Complaints can however be brought by overseas suppliers.
  • The GCA will be able to develop its own practices and procedures for investigation, except to the extent that this is provided for in legislation.
  • The GCA must also publish and consult on general information about its own procedures. 

The government conclusion to its consultation process represents welcome and detailed clarity on this important area of legal enforcement for the groceries industry.  The next stage, which should confirm the government's approach, is likely to be a draft bill.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 04 August 2010.

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