32Delisting products

32 Delisting products

(1) A large grocery business must not delist a supplier’s grocery product.

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 the delisting is: (a) in accordance with the terms of the relevant grocery supply agreement; and (b) for genuine commercial reasons. (3) A large grocery business delists a supplier’s grocery product if: (a) the product is removed from the range of grocery products of the large grocery business; or (b) the large grocery business reduces the distribution of the product across the stores or distribution centres of the large grocery business (as the case may be), and that reduction has or is likely to have a material effect on the supplier. (4) For the purposes of (but without limiting) paragraph (2)(b), genuine commercial reasons for delisting a product include the following: (a) failure of the supplier to meet agreed quality or quantity requirements with respect to the product; (b) failure of the supplier’s product to meet the commercial sales or profitability targets of the large grocery business as notified to the supplier in, or in accordance with, the grocery supply agreement; (c) persistent failure to meet the delivery requirements of the large grocery business as notified to the supplier from time to time in accordance with the grocery supply agreement. (5) To avoid doubt, delisting as a punishment for a complaint, concern or dispute raised by a supplier is not a genuine commercial reason. (6) Before delisting a supplier’s grocery product, the large grocery business must provide reasonable written notice to the supplier of the decision to delist the product. The notice must: (a) include the genuine commercial reasons for delisting the product; and (b) inform the supplier of the supplier’s right to have the decision to delist the product reviewed by the senior buyer for the supplier; and (c) inform the supplier of the supplier’s right to refer a complaint relating to the decision to delist the product to the Code Mediator for the large grocery business (see Subdivision A of Division 5); and (d) include the contact details of the Code Mediator for the large grocery business.

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.

(7) Subsection (6) does not apply if: (a) time is of the essence (including for product recalls, withdrawals or safety issues); or (b) there are persistent issues with supply that have resulted in the large grocery business being out of stock or stocked at significantly reduced levels. (8) A large grocery business must ensure the senior buyer for a supplier promptly complies, in writing, with any written request from the supplier for: (a) a statement of the genuine commercial reasons for a delisting; or (b) information (or additional information) relating to a delisting. This subsection applies whether or not the large grocery business complied (or was required to comply) with subsection (6).