Yesterday in the shower, I noticed that the bar of Ivory soap I had just removed from the package had a notice on its wrapper saying “Not for individual resale.” The French was even severer, saying “Revente individuelle interdite” (Individual resale forbidden).
What I would like to know is, forbidden by whom and via what mechanism? If hypothetically I took it upon myself to buy a package of Ivory soap and resell the bars individually, as a private citizen (at a garage sale, say, or on eBay or something), what would/could the government or Procter & Gamble do to me? Don’t I have the right to sell something I own, assuming it’s not a controlled item/substance? What if I were a small businessperson (a corner store, for example)?
What about the notices on boxes of cereal that say “Not for sale outside Canada”?
If you buy a package and sell the bars individually I doubt P&G would chase you down but in theory they could probably sue you (although if you bought the bundle at the store and not via a purchase agreement with P&G I think you are in the clear but IANAL).
More generally I think this is for merchants. They have deeper pockets and are worth going after. P&G does not want them buying packaged version (presumably at a discount) then unbundling them and selling them at a higher cost. P&G wants the bundle sold in this case and I am willing to bet they have a contractual agreement with the store for this.
I think it’s also a labeling issue - bags of small pieces of candy will often say “Not labeled for individual sale.” The idea is that the FDA has certain labeling requirements (e.g. ingredients & allergy warnings), which the manufacturer will follow by putting on the outside of a large, multi-item package. The retailer is not supposed to break up those packages, since each item inside it does not comply with the FDA requirements.
I’d strongly suspect, but have no cite, that you, as a non-commercial end user, are no longer bound by the FDA requirements.
Product labeling laws require each sold unit to have specific information, and individual units in packs don’t normally meet individual sale requirements. The government would enforce this aspect.
Between you and P&G, it would have to be enforced as part of a contract. The problem is that, if you bought the soap from your local supermarket, you didn’t form a contract with P&G. So, did the contract for the sale of goods between you and the supermarket include a clause forbidding you to resell the bars individually? They’d have to argue that you got adequate notice of this clause, and that it was incorporated into the contract. I think they’d have an uphill battle.
But there could be other reasons for the ban on individual resale. For example, product labelling laws might require a list of ingredients on packets of soap, and P&G has put the list on the larger packet with several bars, but not on the packet with the individual bar. So if you sell the individual bar at a garage sale, you might be in violation of that law. But it wouldn’t be P&G chasing you for that: it would be the state, which enacted the law. All P&G is doing you is warning you about a possible problem.
Huh. I didn’t even think about the ingredient list. Indeed, I’ve just checked my soap, and there is indeed no ingredient list on the bar wrapper. (There is an indication of the weight, the company’s address, and the motto “Joy is in sharing,” which doesn’t strike me as real relevant to soap unless it’s construed in the sense of “save water, shower as a friend,” which seems a bit racy for a family oriented company such as Procter & Gamble.)
As long as I have the product labeling gurus in the house, perhaps we can solve another issue. Is there some sort of uniform international code for how soap, shampoos, cosmetics, etc. have their ingredients listed? I ask because I’ve noticed that, unlike food, such items have their ingredient list in English only, except for “aqua,” which is in Latin (sometimes it’s “water/eau” or “aqua (water/eau)”), the scientific names of plants (sometimes followed by words such as “root extract” in English), and “parfum,” which is in French.
I’ve seen this done with cigarettes. To introduce a new brand or to promote a declining brand, the manufacturers would pre-package three packs of cigarettes plus a coupon for a discount on a future pack, the three-packs prepack to be sold at the price of two packs (and presumably sold to the retailer at a discount from two packs). The individual packs were annotated as described in the OP to prevent the retailer from disassembling the prepacks and selling the individual packs for full retail, therefore getting retail price for three packs for what they’d bought at the wholesale price for two.
And I don’t believe it’s a formalized contract so much as it is the principle that you can only sell what you own (or are sakes agent for, of course): The invoice by which you bought the soap or the cigarettes did not sell you N bars of soap or packs of cigarettes, but N/3 packages composed of three bars/packs, to be sold as a unit. While your customers are free to break open the packages and bathe with/smoke the contents, the retailer is precluded from doing so – he does not “own” the single interior packs but rather the bound-together packages intended for resale as a unit.
The point is not so much enforcement of the prohibition, but enforcement of lableing laws. It gives the manufacturer legal coverage. The hope is that they can’t be held liable if a retailer breaks up a multi-pack and sells items that are not properly labeled.
What are the labelling requirements?
I always thought labelling of ingredients was required for anything that went in your mouth (food, medicine) and there are other requirements for cigarettes; but most other stuff - soap, shampoo, cosmetics, etc. don’t have any strong labelling requirements in Canada or the USA?
For regulated things, it’s for labelling and other regulatory reasons
For unregulated things, it’s to enable, even to a minimum degree, the consumer to narc on the retailer if they’re doing slimy things with promotional/bulk packaging. Some things are meant to be giveaways, and it’s not in Company X’s interest to have their promotional give aways sold by unscrupulous merchants.
Personal care products are vigorously regulated in the US under the Safe Food, Drug, and Cosmetic Act, and under similar laws in other countries. The standard nomenclature used in the US is in the Dictionary of the Personal Care Products Council, formerly the Cosmetic, Toiletry, and Fragrance Association. The Act was passed in 1938.
IANAL but I was thinking along the lines of an adhesion contract (one which is not negotiated). End User License Agreements on software are like this (in that you do not negotiate the contract, you just accept it or not). I realize this may be nothing like that and I know adhesion contracts are shaky at best (although they can be enforceable) but that was what I was thinking when I wrote that. (Essentially that the manufacturer labels it “Not for Resale” and thus everyone down the line presumably has to abide by that when they accept the item…if not then they should not take possession of the item.)
it’s not really a question of adhesion - the only practical consequence of a contract of adhesion is that it may be found to be unenforceable by the unconscionability of its terms
you’re looking for the concept of “privity”. there is no privity of contract (at least flowing up the stream of commerce) between an end user of a tangible good and the producer of the good (there is a lot of privity downstream, esp. with regards to warranties).
this isn’t the same case with an intangible good like a piece of software (at least, according to the proponents of the IP rights of the software manufacturer) because you’re not buying the good for the good’s sake (in this case the CD) you’re buying the good for what it contains (the software service).
A clearer example would be between a prepaid cell phone card versus an actual pre paid cell phone. To the extent that you just want the physical cell phone, there is no privity of contract between you and AT&T that would prevent you from using that phone for whatever you wanted (I’m sure they would argue otherwise, but they’d lose).