The Federal Court's recent $12 million penalty against a major Australian food manufacturer is a stark reminder of when the perfectly reasonable desire to protect brand and market share can tip into anti-competitive conduct. This penalty is possibly the first in a number to come, given that the ACCC has announced it will focus on exclusivity arrangements that impact competition as an enforcement priority for 2022/23. Is exclusivity always bad? No. There are many legal and legitimate reasons to negotiate exclusivity. An easy example is when using a contract manufacturer, it is common practice to include a clause that prevents the contract manufacturer from using your recipe or proprietary processes for any other customer.
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