The Australian Competition and Consumer Commission (ACCC) announced last week that it is investigating claims that Coles and Woolworths are bullying suppliers. The issue is serious, but the ACCC investigation only treats the symptom and diverts attention away from the real cause of the problem: supermarket power.
ACCC enforcement action action against the duopoly for “unconscionable conduct” is nothing but a skirmish on the edge of supermarket power. It would be much better to spend time and money on creating alternative ways in which the eaters and producers of food can connect with each other outside of the major supermarket chains.
Chances are the ACCC will not win any unconscionable conduct case against the supermarkets. They have had very limited success in taking action for such conduct in the past. The relevant provisions poorly define unconscionable conduct and leave it to the courts to make a moral judgement in the circumstances of each case.
Here, the allegations are certainly serious. Suppliers claim that Coles and Woolworths require them to make payments above and beyond that negotiated in order to stock their products, and that the supermarkets impose penalties that do not form part of any negotiated terms of trade. Suppliers also claim that the duopoly does not pay the prices agreed and that they discriminate in favour of their own home-brand products.
These tactics may be unattractive, even uncivilised. But they are exactly what we should expect when two retailers hold 80% of the grocery market. Coles and Woolworths likely have a bevy of lawyers ready to show that their terms were set out in contracts that suppliers freely agreed to; any deviations were the rogue acts of individual bad apples. The supermarkets will argue that this is nothing more than robust competition in the interests of low prices for consumers.
It will be difficult for the ACCC to prove otherwise. In a competitive marketplace, why not ask for the lowest possible price from suppliers and demand extra payments for shelf space, in-store advertising and so on? Why not prefer home-brand products if they make more profit for the supermarket?
The real worry is the fact that these two supermarkets have gained so much power in the first place. We should not be wasting precious public resources fighting over particular instances of the abuse of that power. Instead, we should use every ounce of imagination and creativity we have to challenge the Coles and Woolworths duopoly over grocery retailing and therefore over the very relationship between consumers and their food.
The tragedy of the Coles-Woolworths duopoly is the narrow, greedy, profit-oriented way in which they control and manipulate the relationship between all of us who eat food and those who produce it. The supermarkets say that they are just delivering what consumers want – cheap, reliable, accessible food. Squeezing producers on prices is supposedly part of that equation.
Yet it is the supermarkets and processed food companies that present food to us as something that should be cheap, plentiful and industrial – devoid of any connection with the earth, sun, animals, plants and people who produce it. They barely give us a chance to find out about where our food comes from, let alone at what cost to humans and ecosystems it is produced and sold. If we knew, we would be shocked.
Take “free range” eggs as an example. Woolworths claim to be continually improving animal welfare standards throughout the supply chain. Coles claim to be helping customers switch to “free range” by cutting their prices on cage free eggs.
Yet both are demanding that producers supply “free range” eggs at a price that can only be delivered by an industrialised, concentrated egg production and retail system. This system does not and cannot match the glossy pictures of happy hens on the carton, yet consumers are told that this is what “free range” must mean.
Many consumers turn off “industrialised supermarket free range” as soon as they realise the conditions that the hens are actually kept in. They are even more likely to do so once they meet a farmer at a farmer’s market and taste a day-old egg from a truly happy hen for breakfast. The story can be repeated for any number of foods on the supermarket shelves.
Duopoly supermarket power is stopping us seeing and imagining alternative ways of producing and buying food. The supermarkets like to tell us that they are giving us affordable choices. Instead of spending money fighting over who they bully to deliver us those low cost choices, let’s spend time and money finding, celebrating and developing alternatives such as local, organic or wholefood stores, farmers' markets, exchange at community food hubs and backyard and urban gardens.
If we spent public money on creating alternative retail spaces and developing affordable ways to make tasty, fresh, sustainable food then there would be some true competition for Coles and Woolworths. Instead of asking the ACCC to occasionally thump the duopolists, let’s try to imagine how to nurture thriving small scale social enterprise to build healthier local relationships between us and our food. Then we can figure out what we need to do to make sure that Coles and Woolworths don’t undermine creative alternatives.
Michael Croft
logged in via LinkedIn
Thanks Christine, even the USA has anti trust laws that would prevent any two corporations having more than a combined market share of 40%.
That said there is a viable alternative http://www.australianfoodsovereigntyalliance.org/peoples-food-plan/revised-plan/ Australia's first crowd sourced national policy document, and it is proposes a better food system.
Carol Richards
Postdoctoral Research Fellow
Great article Christine, and really refreshing in calling for a reframing of the issue, rather than tinkering around the edges of the current unworkable orthodoxy. Following Michael Croft's comment below - the threshold for market distortion seems to be considerably lower in other countries. In their investigation into supermarket power, the UK Competition Commission identified that any one company with more than 8% market share had the ability to distort markets, yet the 2008 ACCC inquiry appeared unconcerned that is would have been almost impossible for ColeWorths to not abuse their power.
Yup, let's find another way - and fertilise (organically, of course) the burgeoning fair food movement. Like you say, there are more creative ways to invest public monies.
Michael Croft
logged in via LinkedIn
Here's what Minister Simon Crean has to say about the duopoly today - if it gets past the language filter http://www.abc.net.au/news/2013-02-19/dairy-farmers-27screwed27-by-supermakets/4528068
Kevin V. Russell
logged in via Facebook
This started long before Crean's time. He is as guilty as anyone of doing sweet FA but the market concentration didn't start with him. Fraser would NEVER have allowed the situtaion to get to the current point.
Stephen John Ralph
carer
Unfortunately we ALL have a part in this issue.
That 80% market share is you & me.....and most other Australians.
Unless consumers themselves take action and demand of Coles & Woolies that they need to do much better, the situation will never change.
We need our LOCAL food producers more than ever. The practices in food production in many overseas countries is worry to the health of Australians. That is those countries who have zero or very little quality control standards.
We seem…
Read moreRussell Hamilton
Librarian
"Unless consumers themselves take action and demand of Coles & Woolies ..."
It's simple - you just don't patronise them. I've hardly been in one in the last 30 years. There's a Woolworths at the end of my street - but to me its invisible, non-existent. Across the street is one of those open-all-hours shops that sells good quality food, next door is a chemist, then a bakery. If I need something from a supermarket I go to an IGA.
Some people say these 'gourmet food' shops are more expensive…
Read moreNicholas Rose
Research Assistant at Griffith University
Thanks for an excellent article Christine.
A national attitudes survey carried out by the Australia Institute last year showed very high (i.e. 80% +) levels of support across the country for our family farmers, for small-to-medium sized food businesses, and for strong local and regional food systems: http://www.australianfoodsovereigntyalliance.org/wp-content/uploads/2012/11/AFSA-PeopleFoodPlan-work-paper-media-14Feb2013.pdf.
The ColesWorth duopoly is anathema to all of the above. Given that the duopoly has 80% of the grocery market, there is a huge disconnect between what we say we want and what we actually do (isn't that true of so much of life - cognitive dissonance?) But these views show there is potentially support for something quite different to what we have today. Getting from here to there of course will be a major political struggle, but a start has to be made.
Robert Pekin
logged in via Facebook
Thats it in a nutshell Christine, well put. Unfortunately the ACCC wont get anywhere with this as you point out as they are two embedded in the corporate mindset and other falacies about the economic benefits of a free market. It really bugs me that the ACCC and other institutions wont take some time out to see the alternative that is being built and slowly growing around these two monoliths. One day they will wake up after being completely swamped by the new food movement
May the farm be with you Christine
Robert
R. Ambrose Raven
none
An obvious option is compulsory equalisation and stabilisation schemes for the producers. Forgotten, have we, that there was once an Egg Marketing Board? Its role was specifically to ensure reasonable returns and reasonable conditions, which seldom prevented it from achieving reasonable retail prices as well.
As the opposite, look to the WA farmers (led by the NFF and PGA) who've worked hard to destroy such schemes in the name of competition and capitalism.
Now, for much of the Southern region…
Read moreKevin V. Russell
logged in via Facebook
And orderly marketing is NOT the answer. It wasn't in the sixties and it certainly isn't now. What is needed is genuine competition in the market. We will never get it back now. Never.
Dirk Baltzly
A/Prof. in Philosophy
The underlying problem goes even deeper than Prof. Parker indicates. In general, the common law tradition accords property rights a central role. This is doubtless because it is the historical accretion of court actions brought by the wealthy in defense of their interests. It tends to see the transfer of a property right through entering into a contract as the epitome of freedom. The notion of "unconscionable conduct" is an uncomfortable after-thought that only reluctantly acknowledges the facts of unequal power and the potential for exploitation in such transactions. In fact, these power differentials are almost omni-present and so too is exploitation.
This case is not a perversion or distortion of our existing legal and economic norms: it is simply the reality of our system stripped bare. If you don't like it, there's no reason for your discontent to stop here.
Kevin V. Russell
logged in via Facebook
The ACCC already has the power to take action under unconscionable conduct provisions. You seriously have to ask why they aren't enforcing the law.
Tony Martin
Mr
This whole conflict is not only bigger than the ACCC investigation of bullying food producers, it is bigger than just food.
Read moreThe whole so called Competition Policy is based on an outdated and ineffective economic theory that implies that both transparency, and the ability to interpret information is equal, and that rational judgement will always apply.
The supermarkets have reached their current level of power because of their ability to cross subsidise a sector of their business from other sectors…
Stephen John Ralph
carer
I stand by my comments earlier.
I note that in today's news Nestle (world's largest food company) is now embroiled in the horse meat scandal.
We as responsible citizens need to stand up and be counted. The duopoly has the potential to decimate the Australian food producing sector.
Around the Ballarat area, McCains has potato producers by the goolies.
The fuel discount example is an excellent indication of how C & W insinuate themselves into our consumer habits.
Australians would be in a pickle if our food producing sector is reduced to the entree rather than the main mmeal. We would be at the mercy of overseas suppliers and producers........and given practices in many countries - god help us (if he exists i.e.)
Dirk Baltzly
A/Prof. in Philosophy
Tony -- there's a nice piece in Harper's that summarises some of the themes from his book, Cornered. It is about the destruction of the American economy through their government's unwillingness to use the anti-trust legislation that they have. It is not a pretty picture. And as we all know, bad American ideas (e.g. high stakes testing in schools) have a tendency to migrate here. Coles and Woolies are mere amateurs at this stuff compared to Walmart. http://harpers.org/archive/2012/02/killing-the-competition/
Nicola Moir
logged in via Twitter
Education is always a good place to start for creating the desire for alternative food supplies. However, Coles and Woolworths recognize this very well. The duopoly have targeted our education system nation-wide. They have in place a voucher system that means they give supplies to schools if the schools promote this supermarket campaign. The result is that families are encouraged to shop at the supermarkets to get these vouchers for the schools. The schools often place large billboards on their school…
Read morewilma western
logged in via email @bigpond.com
Is Christine suuggesting that farmers markets and old-fashioned grocers are the answer? If so that is not likely to be a realistic solution. Gourmet and "organic" stalls have to charge more , require more travel and ferrying around of small quantities . Veg and fruit in cartons often disappoints the buyer , but online food outlets do seem to be growing.
But while most commercial producers and the great majority of the general public rely on the existing suprermarkets( not restricted to the big two ) it would be irresponsible not to investigate the allegations of malpractice.
And if "customer rewards " should be outlawed ,you couldn''t restrict that to the big two supermarkets
Tony Martin
Mr
Wilma I doubt if we could ever move back to the corner grocery sore as much as I doubt that the Farmers Market or other alternative distribution system will become the norm.
My criticism is the lack of ACCC action to prevent market manipulation by cross subsidisation.
No objection to a rewards scheme that is given by way of cash return, or even discount for loyalty on the product being sold.
The objection is into the use od cross subsidisation to gain market dominance. The shopper petrol docket and its manipulation are the most obvious sign of this plan. Poker machine subsidy of liquor sales is another. And if you look at the growing so called "loyalty schemes" they mostly have similar aims.
Once a corporation becomes dominant across a sector it is effectively outside the anti-collusion laws as the discussion on price fixing or manipulation is taking place "inside" the one corporation.
Now that is real "insider trading".
John Phillip
John Phillip is a Friend of The Conversation.
Grumpy Old Man
Wilma, my family and I are lucky enough to have moved to Warwick in southern Qld. The farmers here are in a constant battle for survival due to the morally bankrupt behaviour of C & W. By patronising the small independant stalls and markets, we have benefitted from an increased range of products at a (greatly) reduced price AND the farmers who run those stalls are still getting more money than the big 2 offer them. I only wish that more folks had the opportunity to cut out the middle'men' in such a manner.
Stephen John Ralph
carer
Hi John
Good to hear your story.
I don't know how farmers can take the lifestyle. They must have super-human qualities to survive the merry-go-round. Many of them have huge overdrafts that would make me lose sleep every night of the year.
In Torquay we have a popular farmers market here in the parking lot of a fairly new shopping centre ,
(on land that housed the former primary school.).
There was a guy from Shepparton last week selling his fruit. Hopefully he made enough to cover his expenses and a profit as well.
As long as the prices aren't outrageous, I dont think people,mind paying extra cents for items.
And anyway fruit and veg in C & W are much more expensive than many fruit shops.
Ironically this shopping centre has now been bought by Coles, and the market has been given the boot (to move very soon).
wilma western
logged in via email @bigpond.com
I'm a retired farmer , and it's good that you're close enough to direct outlets for produce. Most of the population is not. While some produce markets have established in inner city areas , the costs and emissions associated with transporting the buyers and produce need to be taken into account. Horticulture producers very often need contracts with big outlets to survive , and as well they set up local outlets but don't rely on them for the major part of their income. Lifestylers might but they have other income off-"farm".
Jess Moore
logged in via Facebook
Great article Christine. We need more diversification of offerings in the Australian food and grocery sector, as is occurring overseas. It would be great to see innovative, alternative options emerging for customers to access Australian produce with new players filling the market niche. It may be a challenging market but it shouldn't be considered the "too hard" basket.
Meg Thornton
Dilletante
One thing I'm noticing now as a consumer when I visit my local Woolworths is they don't have the variety and range they used to have. I've been reduced to looking up the websites for product manufacturers to find out whether they still produce the items I'm looking for (since I can't find them at the local Woolies, and haven't been able to find them there for months). There isn't a Coles particularly local to me, and the last time there was, I noticed a similar problem - the range just wasn't there…
Read moreTheo Pertsinidis
Theo Pertsinidis is a Friend of The Conversation.
ALP voter
Ahhh... Supermarkets :-)
Attractive to walk along a supermarket aisle. It's like going to my favourite nightclub... full of different melodies.
Advertising... glossy brochures... sun, sand, surf... smell of coco nut suntan oil... drinking tropical alcohol juices... put some loose change into a poker machine and test my luck... just leave me some money for petrol to get home.
I personally don't like sacrificing quality.
I don't sacrifice my family, my religion, my politics, my sport team…
Read moreStephen John Ralph
carer
Hi Theo
i must confess there IS something seductive about a supermarket, and I guess C & W know it.
Makes you want buy, buy ,buy.
Its no good in bypassing a supermarket as a previous commenter suggested. If C & W market share drops a full 10%, it still leaves them very profitable. We need to ask them directly IF they are gouging food producers, are they doing all they can to support producers and their families, and then by this REALLY supporting Austrailia.
We cant just believe Curtis Stone on the telly.
Kevin V. Russell
logged in via Facebook
The ACCC already has enough evidence and enough power to act against the supermarket duopoly. The fact they haven't makes you wonder what the ACCC is really up to and to whom they answer.They certainly don't answer to Joe Public. Remember this rot started when Alan Fels was in charge so there is enough blame to round for everyone.
Larna Pittiglio
logged in via Twitter
Great article... I absolutely agree with your last paragraph... we need the people to start voting with their shopping dollar and that will only happen with more information, education and awareness.