What is Resale Price Maintenance?
Resale price maintenance (RPM) occurs when a supplier enforces a minimum price at which a retailer or distributor must on-sell those goods, thereby preventing the reseller from setting own prices for goods/services. Under RPM arrangements, retailers are not allowed to sell products below the specified minimum price, even if they want to offer discounts or promotions. Most common forms of RPM arrangements are where a supplier i) sets a specific price – a minimum retail price or a minimum margin, at which a product must be resold, and ii)imposes restrictions on how much a reseller can discount the product price.
Prohibition of RPM
Section 2 of the Competition Act [Chapter 14:28] (theAct) defines an unfair business practice as a restrictive practice or conduct specified in the First Schedule. In terms of Section 42, acts or omissions specified in the First Schedule are unfair business practices for purposes of the Act. Paragraph (9) of the First Schedule provides for RPM as an unfair business practice and defines it as specifying the minimum price at which a product must be resold to customers. The practice restricts businesses from competing effectively and is a breach of the Act.
Recommended Resale Price
Suppliers can recommend prices at which resellers may resell products, an arrangement known as recommended resale price, and which is not RPM as a reseller may resell products at a price they determine themselves. However, if a supplier tries to force a reseller to sell at the recommended resale price, it becomes RPM.
Anticompetitive Effects of RPM
Whilst price ceilings can be a mechanism to protect consumers from exploitation by unscrupulous retailers, the same cannot be said for RPM, given the likely anticompetitive effects arising from such arrangements. Setting of floor prices reduces incentive for innovation and operational efficiency while restricting competition and deteriorating consumer welfare. The following anti-competitive effects are associated with RPM: –
- Higher prices for consumers – by imposing minimum resale prices on products, prices are kept artificially high restricting retailers’ ability to offer discounts or compete on price.
- Limited consumer choice – when businesses engage in RPM, consumers lose out as they cannot shop around for better value. RPM prevents retailers from engaging in non-price competition such as customer service, product quality and product selection. This reduces consumer choice and results in a less competitive marketplace.
- Creation of barriers to entry for new players – when manufacturers/suppliers enforce minimum resale prices, it is difficult for new entrants to compete on price to gain market share.
- Limited access to goods and services – if retailers cannot set their own prices or engage in price competition, they may choose not to stock certain products or serve certain markets where profitability is uncertain (e.g., remote areas). This results in limited access to goods and services for consumers in these areas.
- Formation and maintenance of cartels – RPM can be used to fix prices at all stages of distribution and facilitates cartels. Retailers can conspire to set retail prices at monopoly levels and, because it is the manufacturer who appears to be setting retail prices, collusion diverts attention from the collective price setting by the retailers.
Criminal Liability for Engaging in RPM
The Act provides for criminal liability of any person who engages in RPM. In terms of Section 42 (3) of the Act: –
“Any person who enters into or engages in or otherwise gives effect to an unfair business practice shall be guilty of an offence and liable – a) in the case of an individual to a fine not exceeding level twelve or to imprisonment for a period not exceeding two years or to both such fine and imprisonment; and b) in any other case to a fine not exceeding level fourteen.
The Commission, after establishing a case of RPM, refers the matter for prosecution and the appropriate level of fine is determined by the presiding officer.