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Resale price maintenance (RPM) remains one of the most strictly regulated vertical pricing practices in Australian competition law. Any supplier, manufacturer or franchisor that dictates the price at which a reseller may advertise or sell a product risks contravening a per se prohibition under the Competition and Consumer Act 2010 (Cth), unless it has first lodged a valid resale price maintenance notification with the Australian Competition and Consumer Commission (ACCC) or obtained formal authorisation. With the ACCC intensifying scrutiny of online‑marketplace pricing arrangements through 2025 and 2026, understanding how to navigate the notification process, including the critical 14‑day objection window, has never been more commercially urgent for businesses operating in Australia.
Yes, but only in limited circumstances. RPM is per se prohibited under section 48 of the Competition and Consumer Act 2010. That means engaging in RPM conduct without protection exposes a business to civil penalties, injunctions and reputational damage, regardless of whether it intended to harm competition. Two statutory pathways exist to conduct RPM lawfully:
When deciding between these paths, consider the following five‑point snapshot:
Resale price maintenance occurs when a supplier specifies, or seeks to enforce, the price at which downstream resellers sell or advertise its products. Under the ACCC’s Resale Price Maintenance Guide, RPM can take several forms:
Marketplace scenario. A consumer‑electronics manufacturer distributes products through Amazon Marketplace, its own direct‑to‑consumer website and brick‑and‑mortar retailers. The manufacturer sends a written notice to all resellers stating that any seller advertising below its “minimum price” will have stock allocation withdrawn. This constitutes a minimum resale price arrangement, a textbook resale price maintenance example under Australian law.
Franchise scenario. A national fast‑food franchisor includes a clause in its franchise agreement requiring franchisees to sell menu items at prices set centrally, with no discretion to discount. Even within a franchise network, this pricing control may amount to resale price maintenance in Australia and requires either notification or authorisation to proceed lawfully.
Section 48 of the Competition and Consumer Act 2010 (Cth) prohibits a corporation from engaging in resale price maintenance. Unlike many other competition provisions, RPM does not require the ACCC to prove an anti‑competitive purpose or effect, the conduct itself is sufficient to establish a contravention. The rationale, consistent with OECD competition policy analysis, is that RPM restricts intra‑brand price competition, can facilitate upstream or downstream collusion, and ultimately harms consumers by keeping prices artificially high.
The ACCC publishes detailed guidance documents, including its Guidelines on resale price maintenance notification and its separate Resale Price Maintenance Guide, which explain how the prohibition operates and outline the notification and authorisation pathways available to businesses.
The ACCC has actively enforced the RPM prohibition, including revoking notifications where it concluded public detriment outweighed the benefits. Industry observers note the following enforcement actions as illustrative of the Commission’s approach:
| Period | Action | Outcome |
|---|---|---|
| 2020–2021 | ACCC assessment of RPM notifications in the power‑tools sector (including Stanley Black & Decker‑related notices) | Notifications revoked or allowed to lapse after the ACCC determined public detriment outweighed benefits |
| 2021–2023 | ACCC scrutiny of power‑tool and consumer‑electronics distribution (including Techtronic‑related conduct) | Enforcement proceedings and court‑ordered remedies highlighting the ACCC’s willingness to pursue RPM conduct in concentrated supply chains |
| 2024–2026 | Ongoing ACCC focus on online‑marketplace pricing, platform parity clauses and MAP policy enforcement | Increased compliance activity; ACCC signals further enforcement in digital distribution |
These matters, many of which are documented through decisions published on AustLII and ACCC media releases, underscore that lodging a resale price maintenance notification does not guarantee ongoing protection, the ACCC retains the power to revoke at any time.
Choosing between notification and authorisation is one of the most consequential decisions in the RPM compliance process. The comparison below summarises the key differences:
| Feature | Notification | Authorisation |
|---|---|---|
| Process | Lodge a notification with the ACCC describing the conduct and its public benefits; ACCC publishes and invites objections | Submit a formal application; ACCC conducts a public consultation, invites submissions and issues a determination |
| Typical timeframe | 14‑day public objection window after ACCC publication (plus any ACCC follow‑up); conduct may commence after lodgement | Generally several months (can extend depending on complexity, market testing and any appeal to the Australian Competition Tribunal) |
| Protection scope | Limited immunity, notified conduct is protected unless the ACCC revokes the notification | Full statutory exemption for the specific conduct described if authorisation is granted |
| Risk profile | Higher risk: vulnerable to revocation if third parties object or ACCC reassesses public benefit; limited protection from private litigation | Lower risk once granted: provides broader protection including against private suits; however, refusal leaves the applicant fully exposed |
| Best suited for | Time‑limited promotions, niche product launches, conduct with clear and demonstrable public benefit and minimal competitive detriment | Long‑term distribution arrangements, complex multi‑party agreements, conduct likely to attract stakeholder objections |
Preparing a compliant and persuasive notification requires careful drafting. The ACCC’s Guidelines on resale price maintenance notification set out the information requirements, and the practical steps below reflect those requirements together with common drafting best practices.
E‑commerce and marketplace distribution raise specific challenges for resale price maintenance notification drafting. Price‑parity clauses, algorithmic repricing tools and MAP enforcement through automated monitoring can all constitute RPM conduct. When drafting a notification for marketplace arrangements:
Once drafted, the notification is lodged with the ACCC per its published lodgement procedures. The ACCC then places the notification on its public register. Businesses should check the notification register on the ACCC website to confirm publication and monitor any objections received. The notified conduct may generally commence upon lodgement, but this immunity is provisional, it can be revoked at any time.
Understanding the post‑lodgement timeline is essential because the 14‑day objection window is the primary point at which third parties and the ACCC itself can challenge the notified conduct.
| Event | Who acts | Typical timing |
|---|---|---|
| Notification lodged | Applicant (business) | Day 0 |
| ACCC publishes notification on the public register | ACCC | Shortly after lodgement |
| 14‑day public objection period opens | Third parties (competitors, resellers, consumers, industry bodies) | Day 1–14 after publication |
| ACCC reviews any objections received | ACCC | After Day 14 (timeframe varies) |
| ACCC decision: allow notification to stand or issue a revocation notice | ACCC | Varies, can be weeks to months after the objection window closes |
| Ongoing monitoring, ACCC may revoke at any time if circumstances change | ACCC | Continuous |
If objections are received during the 14‑day window, the ACCC may seek further information from the notifying party. Early indications suggest the ACCC is more likely to revoke a notification where:
Businesses should prepare a response strategy before lodging the notification. This includes pre‑drafting answers to foreseeable objections and assembling additional evidence of public benefit (such as post‑implementation service data or consumer feedback).
Engaging in RPM without a valid notification or authorisation exposes a business, and its directors, to serious consequences. The penalties for resale price maintenance under the Competition and Consumer Act 2010 include:
| Consequence | Detail | Who is exposed |
|---|---|---|
| Civil pecuniary penalties | Substantial fines calculated per the statutory formula (the greater of a fixed maximum per contravention and amounts linked to the benefit obtained or turnover involved) | Corporation and individuals involved in the contravention |
| Injunctions | Court orders restraining the business from continuing or repeating the conduct | Corporation |
| Revocation of notification | The ACCC can revoke a notification at any time, stripping the business of its limited immunity | Notifying party |
| Damages (private action) | Third parties suffering loss may bring private damages actions; notification provides limited (not absolute) protection | Corporation |
| Adverse publicity orders | The court may order publication of the contravention, causing reputational harm | Corporation |
| Director disqualification | In serious cases, directors who were knowingly concerned in the contravention may face disqualification orders | Individual directors and officers |
Directors and senior officers should take the following steps to mitigate personal exposure:
Not every pricing arrangement requires a resale price maintenance notification. Businesses may legitimately influence downstream pricing through mechanisms that fall short of the statutory prohibition. Alternatives and mitigation strategies include:
A major power‑tools manufacturer implemented minimum resale price policies across its Australian distribution network, restricting the prices at which hardware retailers could sell its products. Following complaints, the ACCC assessed the manufacturer’s notifications and ultimately revoked them after concluding that the public detriment, reduced retail price competition, outweighed the claimed benefits of maintaining service standards. The likely practical effect of such revocations is that manufacturers in concentrated supply chains face heightened scrutiny and should prepare detailed, evidence‑backed benefit cases before lodging any notification.
A consumer‑electronics brand required all online sellers, including marketplace third‑party sellers, to adhere to a centrally set minimum advertised price. Sellers who discounted below this threshold had their accounts suspended. Industry observers expect that this type of digitally enforced MAP policy, where compliance is monitored algorithmically and sanctions are applied automatically, will attract increasing ACCC attention. The actionable takeaway for businesses is to review automated pricing enforcement systems and assess whether they cross the line from recommendation into prohibited resale price maintenance conduct in Australia.
Businesses considering a resale price maintenance notification should follow this streamlined action plan:
For tailored guidance on preparing and lodging an RPM notification, or assessing whether authorisation is the safer path, find an Australian competition lawyer through Global Law Experts.
This article was produced by Global Law Experts. For specialist advice on this topic, contact David Grace at Cooper Grace Ward, a member of the Global Law Experts network.
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