Graco Australia

On 21 March 2023 Graco Australia Pty Ltd lodged a resale price maintenance notification. Graco Australia is proposing to require its distributors to advertise its airless and air assisted paint sprayers ranging from entry-level to professional trade products (Paint Sprayers) at or above a minimum advertised price set by it (the Notified Conduct).

Under the Notified Conduct:

• the prescribed minimum advertised price will apply to all advertising, including in print and online
• advertising that offers to match competitor’s prices or states “Call for Price” is permitted as long as it does not suggest that the product is being sold below the prescribed minimum advertised price
• bundled promotions featuring Graco products must be advertised at or above the cumulative minimum advertised prices
• coupons, rebates, gift cards and other incentives or rewards must not be used to discount the advertised price below the prescribed minimum advertised price
• Graco may alter the prescribed minimum advertised prices at any time.

However, the minimum advertised price requirement will not apply to:

• any in-store merchandising, quotes or contracts
• secure internet sites that are not viewable by public and that are used to conduct business-to-business transactions, and
• items in internet “shopping carts” after the customer places the product in the cart by clicking “order”, “add to cart” or a similar command.

The legal protection provided by Graco Australia’s notification automatically commenced on 4 April 2023. However, Graco Australia committed not to commence the conduct until the ACCC completes its assessment.

The ACCC can revoke the legal protection provided by a notification if it is satisfied that the likely benefit to the public from the notified conduct will not outweigh the likely public detriment from the conduct (the ‘test’).

On 31 August 2023 the ACCC issued a Draft Notice proposing to remove the legal protection provided by Graco Australia’s notification. Graco Australia provided a submission in response. No other submissions were received and no conference to discuss the Draft Notice was requested.

On 16 November 2023 the ACCC issued a Notice revoking the notification. Unless an application for review is made to the Australian Competition Tribunal, the legal protection from Graco Australia’s notification ceases on 17 December 2023.

The ACCC’s Notice outlining the reasons why the ACCC considers the likely public benefits will not outweigh the likely public detriment is available under ‘Decisions’ below.

A timeline of the ACCC’s assessment is set out below.