Overview of the Farm Products Marketing Act
All of the marketing boards and all of the representative associations are governed by the FPMA, with the exception of dairy. The Milk Act governs the regulatory system for dairy. Although there are similarities between the two acts, the following information deals only with the FPMA.
This overview is intended only as general information, and not a legal interpretation. It does not cover every provision in the FPMA.
The Section 2 of the FPMA states the purpose of the FPMA is "to provide for the control and regulation in any or all aspects of the producing and marketing within Ontario of farm products including the prohibition of such producing or marketing in whole or in part."
The primary responsibility for Ontario's regulated marketing system rests with the Ontario Farm Products Marketing Commission (Commission). The Commission is accountable to the Minister of Agriculture and Food, and in turn, the Minister is accountable to the provincial Cabinet through the Lieutenant Governor in Council (LGIC). The Commission is established under the Ministry of Agriculture, Food and Rural Affairs Act (MAFRAA).
Section 3 of the FPMA provides some broad powers to the Commission. Among others, these include the power to investigate any matter or settle disputes related to the production, marketing or processing of a regulated product; appoint people to inspect premises and documents related to a regulated product; and require, through regulation, the submission of documents to the Commission. The Commission may choose to delegate these authorities to a marketing board, and can also terminate the delegation. The Commission may also order or direct marketing boards to take specific actions.
Although significant authority has been delegated to the Commission, the MAFRAA authorizes the Minister of Agriculture and Food to direct the Commission by establishing objectives to be achieved.
Under Section 3, marketing board members and staff members are not personally liable for anything done, or not done, in good faith in carrying out their duties.
Under Section 4, a group of producers can petition the Commission to establish a new marketing board for one or more farm products. If the Commission supports the request, it may recommend the establishment of such a plan to the Minister who then makes a recommendation to Cabinet. Existing plans can also be amended following a similar process if requested by a marketing board or other stakeholder. A commodity becomes regulated once a marketing board has been established.
Section Each marketing board established under the FPMA has two regulations. These regulations can be found on the Ontario government's e-laws website. The first is the "plan" regulation. After approval by Cabinet, the Lieutenant Governor in Council (LGIC) gives final approval via an Order-in-Council (OIC).
Among other things, the plan regulation:
Significant changes to the plan regulation such as the addition or deletion of farm products require approval from the LGIC after support is received from the Commission and Minister. Lesser changes such as the redefinition of the electoral districts can be made by the Commission with approval from the Minister.
The second regulation for each board is the "marketing' regulation. This regulation details the specific authorities with respect to the relevant farm product. As well as authorities delegated to the board, the marketing regulation may also include authorities retained by the Commission, such as the establishment and membership of industry advisory committees and the establishment of negotiation agencies. Marketing regulations can be amended by the Commission.
Section 7 and Section 8 provide numerous regulation-making authorities to the Commission. Many of the authorities can be delegated to marketing boards, but some can only be used by the Commission.
Some of the numerous regulation-making authorities include: the authority to require producers to provide information about their businesses to the marketing board or Commission; the authority to set and collect producer licence fees authority to set or negotiate prices paid to producers with buyers; and the authority to operate a supply management system.
When requesting the establishment of a marketing board, producers must provide rationale to the Commission for the authorities they are requesting. After consulting with producers and other stakeholders, the Commission delegates authorities to the board in a marketing regulation. The authorities can be revised by the Commission if requested by the marketing board or any other stakeholder. The Commission can also limit or revoke any powers regulations, order or directions of a marketing board.
Some boards negotiate matters such as the minimum prices paid to producers, and the terms and conditions of sale. The negotiated agreements must be brought into force by the Commission in order to make them binding on the producers and buyers.
If a negotiation is unsuccessful, the decision is made through final offer arbitration. Arbitrator awards must also be brought into force by the Commission.
Any person who is both a producer and a processor of a regulated product has all the rights and privileges of both a producer and a processor, and also all the duties and obligations of both. This applies even if the processor is only processing his or her own product.
Under Section 12 of the FPMA, Cabinet can designate an incorporated producer association as the representative association for all producers of a specified commodity. If a request is supported by the Commission, it makes a recommendation to the Minister, and in turn, to the Cabinet, that the association be given the designation. The regulations providing the designation can also be found on e-laws, under the FPMA.
Unlike marketing boards, representative associations do not have any regulatory authority. Commonly known as Section 12 associations, these organizations collect a mandatory licence fee from producers. The licence fee rate is established by, and can only be changed by, the LGIC. Representative associations can only engage in advertising, education, research etc. to improve the production and marketing of their commodity.
The FPMA provides several enforcement mechanisms to support the powers and authorities entrusted to the Commission and marketing boards.
As noted previously, Section 3 provides the authority to investigate any matter relating to the producing, marketing or processing of a regulated commodity, and to appoint persons to inspect the books, records, documents, lands and premises with the respect to a regulated product.
Section 7 of the FPMA authorizes the Commission to make a wide variety of regulations to aid in enforcement. These include the ability to suspend or revoke licences to produce, market or process; the imposition of financial penalties where there has been failure to comply with the FPMA and underlying regulations, the imposition of interest on licence fees and service changes, the recovery of licence fees in court, and the requirement for financial security. Supply management boards have the authority to cancel, reduce, or refuse to increase a quota if the FPMA or underlying regulations have been violated.
Section 13 allows the Commission or a marketing board to seek an injunction in court in order to prevent a person from continuing to market or process where it appears the person is in contravention of the FPMA, or any underlying regulation, plan, order, direction, agreement or award.
Under Section 14, the Commission can approve the seizure and detention of a regulated product by a marketing board when an appointed inspector believes an offence against the FPMA or regulations has occurred.
Under Section 15, any person who is found guilty of contravening the FPMA or the regulations is liable to pay significant fines up to a specified maximum level.
Section 22 of the FPMA allows the Minister of Agriculture and Food to enter into contracts with the federal government to have national marketing agencies perform marketing functions within Ontario on behalf of the Ontario government. Conversely, agreements can be made to have the Commission or a provincial marketing board perform marketing functions related to inter-provincial and export trade on behalf of the federal government.
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