Groceries Order has only a social defence

Economics: Picture the scene. It is 2015 and rural Ireland is a ghost town landscape

Economics: Picture the scene. It is 2015 and rural Ireland is a ghost town landscape. Towns that once had bustling centres are now soulless dormitory towns for those working in larger centres. Shopping facilities are giant hypermarkets 10 miles from town where the masses plod through aisles a half mile long seeking the cheapest produce.

Gone are the cute mom and pop stores that dotted the high street. Gone are the smiles and friendly chats that livened up the usual shopping trip. And gone is the food industry that once employed thousands of people around Ireland.

That, or some version of it, is what supporters of the Groceries Order fear will happen to small town Ireland if it is abolished.

To its opponents, however, the order is just another symbol of lobbying by cute hoor retailers out to fleece the public. The arguments of its proponents are, they say, the same song that has been sung by every vested interest since lobbying began.

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Once upon a time, a groceries order was what your mother did when she sent you down to the shops. But in 1956 it became the title of legislation introduced to prevent Resale Price Maintenance - a practice whereby producers forced retailers to charge consumers artificially high prices.

In 1987, when supermarket chain H Williams went bust as a result of aggressive price competition, the order was amended, ostensibly to ban below cost selling for processed (not fresh) foods and other stable grocery products.

Predatory pricing is a practice whereby large powerful retailers dictate low prices to their suppliers and then lower prices to below cost levels. Once their weaker rivals are driven out of business, they raise prices again, or so the theory goes.

An immediate problem with the order is that it does not actually ban below cost selling. What it bans is selling below invoice price. The difference is that invoice prices can exclude the value of discounts passed to retailers by suppliers. The order thus gives suppliers the power to pay discounts to retailers separately (so-called "off invoice" discounts) and set higher invoice prices.

When Albert Reynolds introduced this wording as minister in 1987, he did so in the expectation that supermarkets would ensure that the value of such discounts would be subtracted from invoice prices, so that consumers would benefit. This is putting too much faith in market forces.

At the very least, the order must be redesigned to do what it says on the tin - ban below cost selling. Its reference to invoice prices should be scrapped.

But shouldn't the order simply be scrapped lock, stock and barrel? This was recommended by the Fair Trade Commission in 1991. In 2000, the Competition and Mergers Review Group called for it to be retained but amended to remove the reference to below invoice selling. The order survived intact, but that was in the days before Rip-off Ireland.

The order is now a hot political topic and the latest calls for its abolition, from the National Consumer Agency and Competition Authority, are centre stage, politically.

Whether it should be abolished depends on the benefit this might bring to consumers, weighed against the risk and impact of predatory pricing.

The Competition Authority report on the order delivered to the Oireachtas Joint Committee on Enterprise and Small Business this week cites data from the National Consumer Agency saying that food prices are higher in Ireland than the rest of the EU. The report claims its abolition would save the average household up to €481 a year - a total of €577 million.

Critics of the agency - mainly rural politicians - have criticised this data. In relation to the claim that Irish food prices are higher, they point out that the body compiling the data, EU statistical agency Eurostat, only included prices from Dublin thus overstating the level of food prices in Ireland compared to the EU.

They also point out that the estimate of the benefits to consumers relies on an overestimation of the discounts.

Some statistical discrepancies may exist in the case presented against the order, but not to a material extent. And while there are holes in reports against the order, the quality of analysis is still far higher than in those reports arguing for its retention.

Some defenders of the order point to lower food price inflation in recent years. But inflation is a dynamic phenomenon, driven by cyclical and market developments and is a poor indicator of the impact of price controls.

Would abolishing the order lead to predatory pricing? The Competition Authority has found no evidence of competition resulting in the higher prices that should inevitably follow predatory pricing. After all, the whole point of a competitive market is to have multiple predators. Tesco may drive HWilliams out of business. But, if it then raises prices, Dunnes Stores will hoist it with its own petard. How any predator could wipe out all rivals, raising prices and remaining dominant is hard to sustain in an economy where the entrepreneurial spirit is taking root, access to seed capital is improving and customers are more price conscious.

But those who defend the Groceries Order have a point. It's just that it's not quite the point they think they have.

The Groceries Order cannot be used as a whipping boy for the phenomenon of rip-off Ireland. Businesses are under pressure from a vicious circle of cost escalation at work in the Irish economy of which the Groceries Order is but a small part. Local authority charges, for instance, are disproportionately unfair on small business. Removing whatever injustice the order inflicts on consumers should at least be matched by addressing this injustice inflicted on business.

The other point defenders of the order have is that small retailers, as well as pubs and other types of shops, have been in serious decline in the UK. They fear this trend taking root here if the order is abolished.

But the trends in the UK arise not from the lack of any legislation to control prices. The simple fact is that consumers want the cheapest prices they can get. And economies of scale and land costs dictates that these are provided by larger markets away from the high street.

We come back to a point made here last week in response to Robert Putnam's recent address on community values to Fianna Fáil. If government gives consumers the freedom to choose and consumers use it to stop shopping in their local communities, then we have only consumers themselves to blame.

So as far as the Groceries Order can be defended, it is on social and not economic grounds.