Interesting question: is "minimum price" a product requirement subject to mutual recognition; or a selling arrangement subject to non-discrimination?
The Bill is not entirely explicit on this. But for me: price controls are naturally characterised as product requirements. Why?
The Bill is not entirely explicit on this. But for me: price controls are naturally characterised as product requirements. Why?
Cl 3 on MR concerns rules compliance with which is an essential condition for placing that particular good on the market eg composition, packaging, labelling, accompanying documentation or anything else that must be done to / in relation to a good before it is allowed to be sold
Cl 6 on ND concerns rules that do not prescribe the characteristics of the particular good itself, but instead regulate its place or manner of sale eg licensed premises, age requirements, permitted advertising; as well as other indirect requirements like transportation or storage
Trade lawyers have different theories about why and how we divide rules regulating the sale / marketing of goods into product requirements (on the one hand) or selling arrangements (on the other hand). Minimum price controls are indeed often used to illustrate that borderline
For me: regulating the price of a good is best classified as regulating one of its inherent characteristics, compliance with which is necessary for that particular good to be placed on the market - no different from prescribing rules about its ingredients, packaging or labelling
And that reflects the "double regulatory burden" / "home state control" theory that underpins the entire concept of mutual recognition: if a good is lawfully sold at a given price in Territory A, then it must be capable of being sold at the same price in Territory B...
... for Territory B to insist upon a change in the price of the good = the imposition of an additional regulatory burden - equivalent to changing its ingredients / packaging / labelling; it also represents a suppression of home state regulation in favour of host state competence
Other trade lawyers are free to argue otherwise, of course, since the Bill has chosen not to explicitly categorise minimum price controls under Cl 3 or Cl 6 - but in that case, they would also need to make explicit the trade theory / concept that underpins their choice.
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