Retail, Trade and Consumer Goods

Selling through a distributor, through an agent, or through your own Australian company are three different legal positions, not three commercial labels. A distributor buys the goods and resells them on its own account, so it carries the credit risk and stands between you and the customer. An agent sells in your name, so the contract with the customer is yours and the customer’s rights run against you. Your own entity gives you the channel and the whole of the exposure. Selling through a marketplace is a fourth route and it moves none of this, because the seller of record keeps the customer’s rights and, if it imports the goods, the manufacturer’s liability with them. Two limits apply whichever you choose: you cannot require or pressure a reseller not to sell below a price you set, which is prohibited outright rather than tested for its effect, and exclusivity, territory and minimum volume commitments are judged on whether they substantially lessen competition. None of these routes is exclusive against the world. Australia allows parallel imports of genuine goods in most circumstances, so a trade mark rarely stops stock arriving through a channel you did not appoint, and a distributor’s exclusivity binds the parties who signed it and nobody else. Controlling grey goods is done in the supply contracts abroad rather than at the border here.

Goods supplied to a consumer in Australia carry statutory guarantees that the contract cannot exclude, restrict or modify, and a term that tries to is void. Where the failure is a major one the customer chooses between a refund and a replacement, and it is not the supplier’s choice. The point that decides where the cost lands is who counts as the manufacturer: where the goods were made overseas and the maker has no presence here, the importer is treated as the manufacturer, and a retailer who has had to remedy a failure can recover the cost from it. So an Australian subsidiary or distributor that imports carries a liability the overseas parent may assume sits abroad. The supply agreement should decide that between the parties before a claim arrives, not after.

A claim about a product’s origin, its performance, its environmental credentials or an endorsement it does not have is misleading conduct whether or not anyone was misled, and the regulator does not have to show loss. Origin claims have their own tests and a safe harbour, and the difference between goods made here and goods merely packed here is a legal question rather than a marketing one. Some goods must meet a mandatory safety or information standard before they can be supplied at all. Separately, a supplier who becomes aware that its goods are associated with a death or a serious injury or illness must report it within days, a voluntary recall must itself be notified on the same clock, and both obligations run whether or not the supplier accepts the goods were at fault. These are reviewed before a launch, because a recall is the most expensive thing that happens in this sector.