Resale Price Maintenance Notification, ACCC Steps, 14‑day Objection & Penalties

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.

Quick answer, can I notify RPM to the ACCC?

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:

• Notification. A faster process that confers limited immunity once lodged, subject to the ACCC’s power to revoke after a 14‑day public objection period.
• Authorisation. A more comprehensive application that, if granted, provides a full statutory exemption, but typically takes several months to complete.

When deciding between these paths, consider the following five‑point snapshot:

1. Is the conduct time‑limited and low‑risk? Notification may suffice.
2. Do the public benefits clearly outweigh any competitive detriment? Both paths require this test, but notification relies on the ACCC not objecting.
3. Is the pricing restraint complex, long‑term or likely to attract third‑party objections? Authorisation is safer.
4. Do you need immunity from private suits? Authorisation offers broader protection.
5. Can you demonstrate measurable consumer benefits (service quality, product safety, innovation)? Document these before lodging either application.

What is resale price maintenance (RPM)?, types & examples

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:

• Minimum resale price (price floor). The supplier sets the lowest price at which a retailer may sell the product. This is the most common, and most aggressively enforced, form of RPM in Australia.
• Maximum resale price (price ceiling). The supplier caps the highest price a retailer may charge. While less likely to trigger enforcement action, maximum RPM still falls within the statutory prohibition.
• Minimum advertised price (MAP) policies. Where a supplier controls the lowest price at which a product may be advertised rather than the transaction price. Depending on implementation, MAP policies can cross the line into prohibited RPM.
• Price‑parity clauses. Contractual terms requiring a reseller to match or not undercut the supplier’s own pricing (or pricing on other platforms). These clauses are increasingly common in e‑commerce and platform agreements.

Real‑world resale price maintenance examples

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.

Legal framework, statute, ACCC guidance & case law

The per se prohibition

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.

Key cases & ACCC enforcement

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:

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.

Resale price maintenance notification vs authorisation, which path suits your business?

Choosing between notification and authorisation is one of the most consequential decisions in the RPM compliance process. The comparison below summarises the key differences:

Six‑step decision framework

1. Define the conduct precisely. Map every pricing restriction in your distribution agreements.
2. Assess the competitive landscape. How concentrated is the market? Are competitors likely to object?
3. Quantify public benefits. Document service improvements, safety outcomes, innovation or consumer information gains.
4. Estimate duration. Short‑term conduct favours notification; long‑term arrangements favour authorisation.
5. Evaluate litigation risk. If private damages claims from resellers or competitors are plausible, authorisation’s broader protection is preferable.
6. Seek legal advice. The choice between notification and authorisation involves strategic and legal nuance, specialist Australian competition lawyers can model likely ACCC responses.

How to prepare and lodge a resale price maintenance notification (step‑by‑step)

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.

Pre‑lodgement checklist

1. Identify all parties (supplier, distributor, retailer) and their ACNs/ABNs.
2. Describe the products or services subject to the pricing arrangement.
3. Define the geographic scope (national, state‑based, platform‑specific).
4. Specify the type of pricing restraint (minimum price, MAP, parity clause).
5. State the proposed duration of the notified conduct.
6. Detail the pricing mechanism, fixed price, price floor, formula or index‑linked.
7. Articulate the public benefits in concrete, measurable terms (e.g., service standards, safety investment, innovation outcomes).
8. Address potential competitive detriment and explain why benefits outweigh harm.
9. Prepare supporting evidence, market research, consumer surveys, cost analyses.
10. Review existing distribution agreements for conflicting terms or unintended RPM exposure.

Drafting tips for online marketplaces

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:

• Identify the pricing mechanism precisely. Automated repricing algorithms that enforce a price floor operate identically to explicit minimum‑RPM provisions, describe the technology in the notification.
• Distinguish recommended pricing from enforced pricing. A notification is unnecessary for genuinely recommended retail prices that resellers remain free to ignore. The notification must clearly explain why the arrangement goes beyond recommendation.
• Address multi‑platform impacts. If the pricing restraint applies across Amazon, eBay and a direct website, describe the competitive effect on each channel.
• Include sunset clauses. A time‑limited notification is easier to defend and signals good faith to the ACCC.

Lodging the notification and checking the ACCC notification register

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.

ACCC process after a resale price maintenance notification, 14‑day objection window & what it means

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.

Responding to objections, practical strategies

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:

• Multiple independent resellers or competitors object on substantive grounds.
• The claimed public benefits are vague, unquantified or speculative.
• The pricing restraint covers a broad product range or applies indefinitely.

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).

Penalties for resale price maintenance, enforcement & director risks

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:

Director‑level compliance advice

Directors and senior officers should take the following steps to mitigate personal exposure:

• Ensure board minutes record any decision to lodge a resale price maintenance notification, including the legal advice received.
• Implement a competition compliance program with regular training for sales, pricing and distribution teams.
• Monitor the ACCC notification register and enforcement releases for developments relevant to your sector.
• Conduct periodic reviews of distribution agreements to identify and address any unnotified RPM clauses.

Practical risk‑mitigation & alternatives to RPM

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:

1. Recommended retail prices (RRP) only. Suppliers may recommend prices provided resellers remain genuinely free to set their own prices. The key is that the recommendation must not be enforced through threats, incentives or withdrawal of supply.
2. Genuine agency arrangements. Where the supplier retains ownership of goods and the reseller acts as a true agent (not taking title), the supplier may set the sale price. However, structuring arrangements as agency solely to avoid RPM rules carries significant legal risk.
3. Non‑price vertical restraints. Territory restrictions, customer allocation, selective distribution and quality standards may achieve similar commercial objectives without triggering the RPM prohibition.
4. Service‑level commitments. Requiring resellers to provide specified pre‑sale or after‑sale services (training, installation, warranty support) can justify pricing differentials without directly controlling the resale price.
5. Competition compliance audits. Engage competition law specialists to audit distribution agreements annually and train commercial teams on the distinction between permissible recommendations and prohibited RPM.

Resale price maintenance examples & case studies

Case study 1, power‑tools distribution

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.

Case study 2, consumer electronics and online marketplaces

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.

Next steps, compliance checklist

Businesses considering a resale price maintenance notification should follow this streamlined action plan:

1. Map all pricing restraints across your distribution network (offline and online).
2. Assess whether each restraint constitutes RPM under the Competition and Consumer Act 2010.
3. Decide between notification and authorisation using the six‑step decision framework above.
4. Prepare a comprehensive notification with quantified public benefits and competitive‑detriment analysis.
5. Lodge the notification and monitor the ACCC notification register for objections during the 14‑day period.
6. Pre‑draft responses to likely objections.
7. Implement ongoing compliance monitoring, including board‑level reporting and periodic agreement reviews.

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.

Sources

1. ACCC, Guidelines on resale price maintenance notification
2. ACCC, Resale Price Maintenance Guide (PDF)
3. Competition and Consumer Act 2010 (Cth), legislation.gov.au
4. AustLII, Australasian Legal Information Institute
5. OECD Competition Division