Amending retail price maintenance rules

First published in The Korea Herald.

The Korea Fair Trade Commission is all set to take a decision on amending the “Guidelines for Review of Resale Price Maintenance” as the public comment period has just concluded.

Resale price maintenance, or RPM, is a system in which the manufacturing firm determines and enforces the price at which distributors resell its products. Hence, it is also known as vertical price-fixing, price protection, or the practice of imposed prices.

Until now, RPM has been deemed illegal in Korea, and companies that are caught engaging in this practice are fined heavily by the antitrust agency because it is considered anticompetitive.

The proposed amendments will allow RPM under certain conditions, more specifically if it “enhances consumer welfare.” It will still be generally illegal; firms need to prove that it does indeed help consumers if they want to get permission for the practice.

The FTC guidelines prescribe specific review criteria for the enforcement of Article 29 (1) of the Monopoly Regulation and Fair Trade Act on resale price maintenance, or RPM. For this purpose, it received public comments for about three weeks from May 23 to June 13.

The current guidelines treat minimum RPM as illegal per se regardless of whether there are justifiable reasons for using it, such as consumer welfare enhancement.

“The proposals state that the minimum RPM is highly likely to be deemed illegal as a matter of principle. However, when the consumer welfare enhancing effect of the minimum RPM concerned outweighs its anticompetitive effect, the minimum RPM can be permitted as an exception,” the agency has noted.

“The burden of proving reasons to justify the minimum RPM, such as consumer welfare enhancing effect, is on the (concerned) enterprise.”

Following the FTC’s move, there are some questions that need to be asked: Should RPM continue to remain illegal? And what will be the impact of the proposed amendments?

For many years, until antitrust agencies across the world struck it down, RPM used to be a common practice for manufacturers to set a minimum price for retailers to sell their goods. It ensured a minimum price of resale and avoided price competition.

Globally, public policy toward RPM has taken various forms.

It has been prohibited in Canada since 1951 as a restrictive practice against the public interest. In the United States resale price maintenance is authorized in some but not all the states, and also in interstate commerce between “fair-trade” states. In Sweden the practice has been prohibited since 1953. In the United Kingdom legislation introduced in 1964 prohibits RPM, except for classes of goods specifically exempted by a special court.

There are quite a few criticisms of RPM, which led it to being termed illegal.

It is argued that the system artificially inflates prices. Consumers lose out as they have less discretionary income to spend on other goods. Moreover, it is also allocatively inefficient as the price is likely to be above marginal cost.

By setting high prices, manufacturers will have no incentive to remain internationally competitive. RPM enables an easy profit margin in domestic markets, but the result is that inefficient manufacturers may stay in business and lose the market incentive to cut costs and become more efficient.

It also seems out of place today when the culture of shopping around on the Internet for the cheapest products is so widespread.

The likelihood of collusion is high, particularly in a market gravitating toward either manufacturers or retailers. By making RPM illegal, it prevents the formation of cartels.

On the other hand, the supporters of RPM say that it helps retailers to be more profitable. Manufacturers may also prefer it, because if the retailers are profitable then more of their goods will be sold.

It also prevents price wars among retailers as they will not start undercutting each other.

It has also been argued that RPM provides help for smaller retailers, who cannot buy in bulk, to remain profitable. On the other hand, it enables manufacturers to reward shops who promote their products through advertising. This will help firms invest more in future products.

Consumers benefit because they don’t have to waste time searching around for the best deal. They know the price will be the same regardless of where they buy it.

Moreover, its supporters note that minimum RPM is different from price-fixing by cartels. Classic price-fixing is typically referred to as horizontal price-fixing, as they are arrangements between competitors operating at the same level of distribution. On the other hand, vertical arrangements are those between businesses operating at distinct levels of distribution.

In price-fixing, the initiators are competitors who realize that they will be better off if they minimize group competition. With minimum RPM, a single manufacturer influences downstream retailers’ behavior through an increased markup, so they will compete more aggressively on nonprice dimensions, even as competition among manufacturers is not affected. This enhances intra-brand nonprice competition and overall inter-brand competition.

They note that minimum RPM is a business practice that can benefit companies and consumers in stark contrast to price-fixing conspiracies.

Incidentally, in recent years, there is increasing recognition of the potential competition benefits of RPM arrangements and many antitrust agencies are relaxing the rules to make them more flexible.

In 2007, the United States moved away from the per se prohibition. In December 2014, the Australian Competition and Consumer Commission authorized an RPM agreement for the first time, recognizing that the supplier had limited market power and that the arrangement benefited consumers. The European Union guidelines also state that parties to an RPM agreement have the “possibility to plead an efficiency defense” under certain circumstances. In a number of jurisdictions in the region, RPM agreements are not singled out, but are subject to the same test as other vertical agreements.

South Korea is also now moving in the same direction, and it remains to be seen how flexible the FTC amendments will be.