Resale Price Maintenance: A Stocktake

Julie Clarke

Australian Journal of Competition and Consumer Law

Julie Clarke, ‘Resale Price Maintenance: A Stocktake’ (2020) 28 Australian Journal of Competition and Consumer Law 275-285

Introduction

Resale price maintenance (RPM) has been the subject of strict prohibition in Australia since the Restrictive Trade Practices Act 1971 (Cth) (1971 Act) introduced a per se prohibition on minimum restrictive price maintenance (RPM), coupled with an option for exemption. When this Act was replaced by the current Act in 1974 the RPM prohibition was re-enacted in substantially the same form, the key changes being to extend the definition of RPM and remove the possibility for exemption. The prohibition has since been extended to capture services as well as goods and attempts to make it subject to a competition test, rather than a per se offence have been resisted. However, recognising that it may not always be harmful, an exemption in respect of RPM between related companies has been created and most importantly, the Act's authorisation process has been extended to RPM, as has the quicker and cheaper notification process.

This note reviews those developments and examines the approach of the Australian Competition and Consumer Commission (ACCC) to public benefit claims with respect to RPM. Briefly, its conclusions are that the ACCC will be particularly concerned with public detriments in the form of reduced intra-brand price competition and will require the applicant to provide clear evidence of substantial public benefit before granting authorisation or allowing a notification to stand.

[footnotes omitted]