In early 2008, the three major laundry detergent suppliers (Colgate, Cussons and Unilever) began separately considering discontinuing supply of standard concentrate detergents in favour of ultra-concentrate detergents.
This transition had already occurred in foreign markets and was expected to reduce expenditure and deliver greater value to consumers if adopted in Australia.
The Australian Consumer Commission (ACCC) alleged that a cartel arrangement was made between these three suppliers to make the transition to ultra-concentrate detergents at the same time and in the same way.
The ACCC submitted that this arrangement was made to prevent consumers from favouring brands that maintained their standard concentrate detergent lines.
The ACCC brought a case against Colgate, Cussons and Woolworths, alleging that such an arrangement had been made and that this arrangement was in breach of the Trade Practices Act 1974 (now the Competition and Consumer Act 2010).
Cussons was the only party that fully contested the ACCC’s case. The other defendants settled and were given substantial pecuniary penalties prior to trial.
Justice Wigney of the Federal Court dismissed the ACCC’s case against Cussons after a full trial on the issues.
Justice Wigney held that that the ACCC had failed to prove that Cussons entered into an anti-competitive arrangement with the other suppliers. He found there was no evidence of any agreement to withhold, restrict or limit supply of standard or ultra-concentrate detergents to supermarkets and the timing of the transition to supplying only ultra-concentrate detergents had been based on market analytics and economic factors.
Martin Scott QC appeared for Cussons. The full decision can be read here.