28Funding promotions

28 Funding promotions

(1) A large grocery business must not directly or indirectly require a supplier to fund part or all of the costs of a promotion.

Civil penalty:

(a) for a contravention by a body corporate—3,200 penalty units; or
(b) for a contravention by a person who is not a body corporate—640 penalty units.

(2) Subsection (1) does not apply if: (a) a provision of the relevant grocery supply agreement expressly provides for the funding; and (b) that provision of the agreement is an allowable contrary provision; and (c) the funding is required in accordance with the agreement; and (d) the funding is reasonable in the circumstances. (3) For the purposes of (but without limiting) paragraph (2)(d), in determining whether the funding is reasonable in the circumstances, regard must be had to: (a) the likely and actual benefits, costs and risks (if any) for the supplier and for the large grocery business for the promotion; and (b) whether the funding is for a purpose that benefits both the supplier and the large grocery business. (4) A large grocery business that wishes to rely on subsection (2) must prove the matters in that subsection on the balance of probabilities (except in relation to whether the funding causes detriment to a supplier for the purposes of paragraph (2)(d)).