Draft notice to revoke Nestlé notification

The Australian Competition and Consumer Commission has issued a draft notice proposing to revoke a notification* lodged by Nestlé Australia Ltd on 2 December 2005.

Nestlé Australia lodged the notification after it learned that ALDI was selling NESCAFÉ brand instant coffee manufactured in Indonesia and Brazil.

On 2 December 2005, Nestlé Australia Ltd lodged the notification with the ACCC concerning a refusal by Nestlé Australia's to supply Nestlé branded products, including NESCAFÉ BLEND 43 instant coffee and MILO, and private label products to ALDI Stores unless ALDI complied with Nestlé Australia's conditions on the presentation and advertising of the products. ALDI had not agreed to display the imported NESCAFÉ coffee in the way that Nestlé Australia required.

Nestlé Australia told the ACCC that it wanted consumers to know that the imported products were not the coffee brands they were familiar with, and that they tasted different. However, the ACCC believes that Nestlé Australia went further than was required to sufficiently inform consumers.

"The ACCC has formed the view that the refusal to supply ALDI was likely to have an anticompetitive purpose and effect and does not have net public benefits", ACCC Chairman, Mr Graeme Samuel said.

"Nestlé Australia and interested parties now have time to lodge submissions in response to the draft notice, before the ACCC decides whether to issue a final notice revoking the notification", Mr Samuel said.

More information regarding the notification and a copy of the draft notice are available from the ACCC's website (see links below) or by emailing the Adjudication Branch at adjudication@accc.gov.au.

Background

*By lodging an exclusive dealing notification with the ACCC, a party obtains immunity from court action for that conduct. In this case, immunity is conferred automatically when the notification is lodged. Once the ACCC receives a notification, it reviews the purpose and effect of the notified conduct. If the ACCC forms the view that the conduct substantially lessens competition, and that it does not deliver a net public benefit, it may issue a draft notice proposing to revoke the notification. After considering any submissions from interested parties in response to the draft notice, and conducting a conference if any of the interested parties call for a conference, the ACCC must decide whether to issue a final notice.