Here is the letter I sent yesterday to the ACCC detailing my unconscionable conduct complaint against NDD. I have documented what I consider to be irrefutable evidence of supply and return data for Bargain Shopper magazine from the last fourteen months, data which has been ignored by NDD in the making of their latest scale out decisions for this title:
On December 21, 2005, NDD supplied my business with 64 copies of the 2006 edition of Bargain Shopper. We returned 34 copies: 28 copies on January 12, 2006 and 6 copies on June 7, 2006. On February 8, 2006, NDD supplied us with 40 copies of the same 2006 edition we had earlier returned. We subsequently returned 30 of these: 14 copies on April 12, 2006 and 13 copies on June 7, 2006. On August 25, 2006, NDD supplied a further 29 copies and we subsequently returned 18. In broad terms this represents a sell-through (success) rate of 38% for 2006. Once we allow for theft, the success rate falls to close to 34%.
On January 10, 2007, NDD supplied my newsagency with 75 copies of the 2007 edition of Bargain Shopper. Given the access it has to sales data, NDD would know that it would be unlikely that we sell any more than 30 copies of the title through the entire forecast on-sale period, even allowing for some growth.
The supply of 75 copies on Bargain Shopper accompanied by a requirement that they are held for eight months is, in my view, unconscionable conduct under section 51AC of the Trade Practices Act 1974. I say this because NDD consistently oversupplied long shelf titles like Bargain Shopper with the full knowledge that my business will sell less than half of what they supply.
Section 51AC of the Trade Practices Act 1974 sets out several factors a court can consider in deciding whether conduct was unconscionable. The ACCC website advises:
Being taken advantage of in a transaction in a way that offends the conscience is known as unconscionable conduct.
Does it offend the conscience that NDD supplied me with such quantity of Bargain Shopper that I will lose money? Yes! Does NDD do this for other titles? Yes! Will NDD offer to fix this? Yes! Some time after fixing this will NDD revert to their old practices and oversupply? Yes!
I could have supported my complaint against NDD with evidence relating to many more titles. I felt it appropriate to start with one. Depending on the response from the ACCC, I may add more titles.
It would be easy to turn a blind eye to the oversupply by NDD as many newsagents do. Sometimes it is too stressful thinking about the tens of thousands of dollars in magazine stock sitting on the shelves waiting to be returned some time in the future. My view is that unless newsagents take a strong stand we will continue to be treated as we are. We ought to be proud of our businesses and the benefits they provide publishers and magazine distributors and we ought to price ourselves accordingly.