Introduction

With intense competition among retail grocery chains in Canada, food manufacturers are increasingly being confronted by demands to freeze or roll back the prices at which they sell to retailers. This is, in part, due to the lower margins earned when retailers aggressively discount products to drive store traffic. Using popular brands as ‘loss leaders’ often causes conflict between retailers and suppliers, particularly if the brand is positioned in the market as a premium or high quality brand. Suppliers are typically loathe to see the brand equity in which they have invested diminished when their products are heavily discounted.

Competition Act

When Canada’s Competition Act was amended in 2009, suppliers gained a new tool to address these concerns. Before then, it was a criminal offence for anyone engaged in the business of producing or supplying a product to, by certain specified means, attempt to influence upward, or to discourage the reduction of, the price at which any other person supplied, offered to supply, or advertised a product within Canada. A supplier could suggest a retail price, but had to make clear that the final decision on the retail price rested with the retailer; and that the relationship between supplier and retailer would not suffer if the retailer did not accept the suggestion.

This conduct is no longer a criminal offence. Suppliers can now dictate retail prices, so long as doing so does not result, or is unlikely to result, in an adverse effect on competition. This threshold of anti-competitive harm is lower than the bar set in other provisions of the Competition Act, which require there be a substantial lessening of competition.

Thus far, there has been little guidance on what constitutes an ‘adverse’ effect, other than that it is less than what is required for there to be a ‘substantial’ effect. In Canada’s enforcement guidelines on abuse of dominance provisions, the Commissioner of Competition has indicated that a market share of less than 35 per cent will generally not prompt further investigation, and that those provisions use the ‘substantial lessening’ threshold.

Suppliers seek to impose minimum advertised pricing programmes

An article in the Canadian press suggested that food suppliers are combating pressure for discounts and price roll-backs by imposing minimum advertised pricing programmes on grocery retailers. Under these plans, a supplier relies on section 76 of the Competition Act to dictate (unilaterally) the lowest price at which the retailers it supplies can advertise their products. Failure to follow these programmes could, under the supply plan, result in a range of specified sanctions, from the loss of promotional funds up to discontinuation of supply.

Calls for a code of conduct

Given these concerns, there have been calls for the federal government to impose a code of conduct on suppliers and retailers. Similar codes exist in Britain and Australia, where the grocery sector is highly concentrated. At a practical level, it is unclear which federal agency would be responsible for a code – although it should be noted that the Competition Bureau issued abuse of dominance guidelines for the grocery sector in 2002. (Those guidelines were subsequently repealed, along with other sector-specific guidelines, when the current guidelines were issued in 2012.)

Our advice

Suppliers considering a supply programme that would impose minimum advertising pricing requirements should exercise caution and carefully evaluate their market position before implementing one. Suppliers that do not hold a dominant position will generally be able to impose such programmes, as it is unlikely that doing so will give rise to an adverse effect on competition. However, the analysis is highly factspecific and should be undertaken with care. In addition, suppliers should only act unilaterally in imposing these programmes. Acting in concert with other suppliers or at the behest of certain retailers could result in a breach of the criminal prohibition on pricefixing, which can result in a fine of up to C$25 million and up to 14 years in prison.