Restrictive Practices (Groceries) Order, 1987

• Jurisdiction: Ireland
• Citation: IR SI 142/1987

S.I. No. 142 of 1987.

RESTRICTIVE PRACTICES (GROCERIES) ORDER, 1987.

I, ALBERT REYNOLDS, Minister for Industry and Commerce, having considered the report of the Restrictive Practices Commission being a special review under section 10 of the Restrictive Practices Act, 1972 (No. 11 of 1972) of the operation of the Restrictive Practices (Groceries) Order, 1981, in exercise of the powers conferred on me by section 8 of the said Act, hereby order as follows: 1. This Order may be cited as the Restrictive Practices (Groceries) Order, 1987. 2. (1) In this Order—

"authorised officer" means a person authorised in writing by the Examiner for the purposes of Section 15 of the Restrictive Practices Act, 1972 .

"best list price", in relation to grocery goods, means the lowest price of the goods which having regard to the statement which for the time being stands prepared and maintained by the relevant supplier in accordance with the requirements of Article 13 of this Order (no account being taken of any supplementary term, or of any allowance or discount which is not calculated by reference to the purchase concerned), may be obtained by a purchaser taking the maximum advantage of the terms and conditions specified in the said statement;

"date of minimum durability" in relation to grocery goods shall be the date marked on the goods, preceded by the words 'best before' or 'best before end' (being a date until which the grocery goods retain their specific properties when properly stored);

"discount" and "markup" include, respectively, a discount or markup however expressed;

"the Examiner" means the Examiner of Restrictive Practices;

"grocery goods" means grocery goods for human consumption (excluding fresh fruit, fresh vegetables, fresh and frozen meat, fresh fish and frozen fish which has undergone no processing other than freezing with or without the addition of preservatives) and intoxicating liquors not for consumption on the premises and such household necessaries (other than foodstuffs) as are ordinarily sold in grocery shops, and includes grocery goods designated as "own label", "generic" or other similar description;

"like goods" means similar goods which do not differ one from another as regards their nature, grade, brand, quantity per pack or packaging;

"retailer" means any person who resells grocery goods to the public;

"supplementary term" means any term or condition providing for a rebate or discount in relation to the amount payable in respect of the sale of any grocery goods by a supplier to a wholesaler or retailer or an allowance by a supplier to a wholesaler or retailer, in consideration of—

(a) the making of purchases by the wholesaler or retailer from the supplier of those goods over a specified period of time, whether or not in excess of specified quantities, or

(b) the promotion of sales of those goods by means of special arrangements carried out for a limited period by or on behalf of the wholesaler or retailer, or

(c) any other arrangement relating to price not indicated in the terms and conditions published under Article 13 of this Order;

"seasonal goods" means Christmas cakes, Easter eggs and Halloween bracks;

"supplier" means a manufacturer or importer of grocery goods for sale to wholesalers or retailers and includes any person who processes, blends, cans, packs or otherwise prepares grocery goods for sale to wholesalers or retailers and also includes any person who acts as the sole distributor of such goods to wholesalers or retailers;

"wholesaler" means any person who purchases from a supplier grocery goods for resale to retailers.

(2) For the purposes of this Order the net invoice price of grocery goods supplied by a supplier or a wholesaler to a retailer or by a supplier to a wholesaler shall be calculated having regard to an invoice relating to the delivery of like goods by the supplier or wholesaler to the warehouse or retail store concerned which is of the same date with the sale of goods or with the relevant advertisement, and, in case there is not in existence such an invoice, then such net invoice price shall be calculated having regard to the invoice which relates to such a delivery and which is that issued most recently prior to the sale of goods or the advertisement's publication, and such price shall be calculated net of any allowance or refund that is allowable on the return of the goods' container, and no account shall be taken of discounts, rebates or other deductions which are not entered on the invoice in cash terms as deductions from the sum due to the supplier or wholesaler. 3. (1) Subject to paragraphs (2), (3) and (4) of this Article, a supplier or wholesaler shall not require or induce or attempt to require or induce any person (whether directly or indirectly, by withholding supplies from that other person or otherwise discriminating against him or by threatening to do so, or by any other threat or by any agreement, promise or any other means) to resell or offer for resale grocery goods—

(a) at a fixed price specified by the supplier or wholesaler or established by agreement or otherwise, or

(b) at a price not less than a fixed or minimum price specified by the supplier or wholesaler or established by agreement or otherwise, or

(c) at a fixed markup or a fixed discount specified by the supplier or wholesaler or established by agreement or otherwise, or

(d) at a markup not less than a fixed or minimum markup specified by the supplier or wholesaler or established by agreement or otherwise, or

(e) at a discount not greater than a fixed or maximum discount specified by the supplier or wholesaler or established by agreement or otherwise.

(2) Subject to paragraph (3) of this Article, nothing in paragraph (1) of this Article shall be construed as preventing a supplier—

(a) from advertising, or otherwise specifying, resale prices for any grocery goods: provided such prices are maximum prices, or

(b) from withholding grocery goods from a wholesaler or retailer who—

(i) has sold or offered for sale, grocery goods supplied by the supplier—

(I) at a price that exceeded the maximum resale price specified by the supplier, or

(II) at a price (not being a maximum price fixed for the time being by an order under the Prices Acts, 1958 to 1972) that is less than the net invoice price of the goods (including value added tax) payable to the supplier, and

(ii) fails to give to the supplier an acceptable undertaking to discontinue so selling, or offering for sale, such grocery goods.

(3) Where the grocery goods are sold by a retailer more than four weeks after the date on which a price list provided by a supplier for like goods has been altered and no delivery of like goods accompanied by an invoice has been made to the retailer concerned since the date of the alteration, then, in relation to the goods, paragraph (2) (b) (i) (II) of this Article shall be construed and have effect as if "best list price" were substituted for "net invoice price".

(4) A supplier may request a wholesaler to withhold supplies of grocery goods supplied by him from a retailer in any circumstances in which, under this Order, the supplier would be entitled to withhold supplies from the retailer and, if the wholesaler fails or refuses to comply with the request, the supplier may withhold supplies of such goods from that wholesaler. 4. Where a supplier indicates or recommends a resale price of grocery goods such price shall not be binding on any person as a minimum...