Resale Price Maintenance: explaining the controversy, and small steps towards a more nuanced policy

Within the current legal framework there is, in our view, not yet sufficient evidence available to justify moving RPM out of the ‘presumed illegality’ or ‘object’ box and into a case by case assessment ‘effect’ box. However, from the above discussion, it is clear that RPM falls a long way short of more extreme anti-competitive behaviour such as naked horizontal price fixing. In ideal world, the law would reflect this difference, and in the final section of this paper we set out some small steps towards a slightly more nuanced approach to assessing RPM. While further work is required before these could be fully implemented, we believe that these few small changes could greatly ameliorate our reservations about the current legal framework, while preserving a position where RPM will, for the most part, remain unlawful.