ACCC files Federal Court proceedings against Peters for exclusivity dealing

The ACCC alleges that Peters' exclusive agreement with its distributor prevented competition for the supply of single-wrapped ice creams to petrol and convenience retailers.

It is alleged that between November 2014 and December 2019, Australasian Food Group Pty Ltd, trading as Peters Ice Cream (Peters) engaged in anti-competitive exclusive dealing by entering into and giving effect to an agreement with PFD Food Services Pty Ltd (PFD) to distribute its single-wrapped ice cream and frozen confectionary products to national petrol and convenience retailers.

The ACCC alleges that the agreement included a term preventing PFD distributing any competing ice cream products in certain places around Australia. It is further alleged that during the term PFD had sought Peters' consent to distribute competing ice cream products to national petrol and convenience retails but Peters refused.

The ACCC alleges that that this exclusivity had both the purpose and effect of substantially lessening competition. In this regard it is alleged that:

  • PFD was the only commercially viable option for new entrants for the distribution of single-wrapped ice cream products to national petrol and convenience retailers.
  • Peters and the other major supplier of single serve ice creams together held a combined market share of over 95 percent.
  • Peters' conduct prevented new entrants from entering or expanding into the market.

The ACCC is seeking penalties and other orders.

This development reinforces the importance of ensuring that distribution arrangements do not raise competition risks. In particular, it serves as a good reminder that arrangements, involving exclusivity should be regularly reviewed to ensure that they do not contravene competition law.

For more information, please refer to the ACCC's media release (see here).

Banking cartel case moves to the Federal Court for trial

Three leading banks and six senior executives have now been committed to stand trial - over two years after criminal cartel proceedings were first filed.

In June 2018, following a lengthy ACCC investigation, charges were laid against Australia and New Zealand Banking Group Ltd (ANZ), Citigroup Global Markets Australia Pty Limited (Citigroup), Deutsche Bank AG (Deutsche Bank) and six senior executives regarding alleged cartel conduct associated with the trading of ANZ shares in 2015. In December 2020, the defendants were committed to the Federal Court for trial, and the matter has now moved from the Local Court of NSW to the Federal Court. Each of the banks and executives has pleaded not guilty to all charges brought against them.

This high-profile case is the first major criminal prosecution for cartel conduct involving banks in Australia. It demonstrates the commitment of the ACCC to pursuing cartel conduct allegations, and the importance of companies ensuring that commercial arrangements will withstand scrutiny from a competition law perspective if required.

For more information, please refer to the ACCC's media release (see here).

Mandatory disclosure requirements for businesses dealing with NSW consumers

NSW Fair Trading will now enforce new disclosure obligations on affected businesses.

The NSW Fair Trading enforcement grace period for new disclosure obligations under the Fair Trading Act 1987 (NSW) expired on 31 December 2020.

Broadly, the new disclosure obligations commenced on 1 July 2020 and require:

  • suppliers to take reasonable steps to ensure that a consumer is aware of the substance and effect of terms or conditions of contracts that substantially prejudice the interests of consumers (Section 47A). The disclosure must be made prior to the business' supply of the goods or services; and
  • intermediaries (such as travel agents, mortgage brokers and real estate agents) to disclose the fact of any financial incentives they receive from suppliers (Section 47B). These disclosures must be made before the business acts under an arrangement where it may receive a commission or referral fee.

The new laws are applicable to businesses which deal with "consumers" in NSW. Contravention of these provisions can attract significant penalties for businesses and individuals.

Businesses dealing with consumers in NSW should review their existing contracts and disclosure procedures to ensure that they comply with the new requirements.

For more information, please refer to the ACCC's media release (see here).