Ms Karen O'Leary:

On Senator O'Keeffe’s comment about suggestions, in 2009 when there was a consultation on the code, the National Consumer Agency made a suggestion to use similar provisions to those in the current unfair commercial practices directive, which is only consumer to business or business to consumer. The suggestion we made was that it would be reformed in a business to business context because it gives a range of enforcement tools which are proportionate to the breaches. That depends very much on how it works in the supply chain because when we take enforcement action, as Ms Goggin mentioned, we have a range of tools that we can use which are very powerful. Going to court is costly and it takes time. Where it should be done, we do it, but we must be careful about how we assign resources. We do have some powers to enforce fines and also compliance notices. Such instruments lead to enforcement and are not costly. Again, we can do that on foot of complaints. Once the two organisations are merged and assuming the combined organisation gets a role in a grocery code it is about how to enforce what we need to enforce. I echo what Ms Goggin said, once we are merged and we have the job, it will be done to the best of our ability. Our only concern is that it can be done well and that the intention of it can lead to the right impact. That is what we want to see. We did suggest that at the time because we felt that it could provide a solution.

The other point that is interesting is that there is a statutory instrument relating to unfair terms in consumer contracts. It does what it says on the tin. It sets out that in pro forma contracts where a business gives a contract to a consumer on a take it or leave it basis there is a power imbalance. Increasingly, consumers are assigning contracts for stuff they did not have to provide contracts for previously, for energy, financial services and telecoms. We have the power to seek to have some of those terms overturned if, on balance, they are unfair to the consumer. Using that in a business to business context might also require legislative change. It would require the introduction of a new statutory instrument. I was reminded of that when Ms Goggin referred to slapping a 300 page contract in front of someone. I agree with her that if the code says everything must be in writing, that is fine but it does not address a big player and a small player and in fact it could make it worse for some. The instrument that is used in order to protect consumers in that context is unfair terms in consumer contracts regulations, which do not mean that every term must be pro-consumer but it means that the totality of the contract must be fair. It also makes provision for excessive transfer of risk or limitation of liability where the trader accepts no liability even when it should. Those are two things that might help when we are talking about application.

In response to the question on horsemeat, two things are important to understand. The legislation we apply is horizontal as Mr. Shine said. What that means is it applies to every sector and every practice where it is a business to consumer. It is quite broad and it is an instrument that can be very powerful in certain situations and in other situations it is not as suitable. In a lot of sectors there is sector-specific legislation. Financial services is a big one where the Central Bank has a sectoral role in consumer protection. Another area is telecoms where ComReg has a certain element of consumer protection within its overall mandate and also as an energy regulator. The consumer is at the top and one has sectoral regulators. There are some rules that are specific to food and they are better dealt with under the sectoral regulator.

What we do not want to do is bump into each other while trampling over the same problem. That is not a good use of State resources. I can tell the committee that the acting chief executive at the time - I had not been appointed - wrote to the chief executive of the Food Standards Authority of Ireland, FSAI, offering assistance and asking if there was anything it could do or if there were issues better dealt with under the Consumer Protection Act.

In terms of lessons learned, we genuinely asked what we can do but we came to the view that the FSAI was all over it, so to speak, that the Department of Agriculture, Food and the Marine and the FSAI had more power than we could apply, that the Consumer Protection Act, CPA, would not help, and that we would get in the way. We offered assistance and said that if breaches were found with regard to which the CPA would be a better instrument they should call us and we will come in.

On the overall issue, I agree it is a consumer issue but we believe that any agency or organisation, including Government policy, has to have consumers represented on it also. We do not have a monopoly on it, so to speak.

Regarding loyalty schemes and points, we have not done specific research on consumer attitudes to loyalty schemes. In terms of consumer behaviour - members should take surveys with a caveat - a friend of mine who has a set of keys has a loyalty card from almost everyone who offers them but it is a loyalty with no loyalty, so to speak. Consumers perceive they are getting something for it but the question is whether they are simply paying more and getting it back in another way. There is an element of that, but we have not done research into that specific issue.