The High Court declared that disposable nappies were not included in the definition of “grocery goods” in the Restrictive Practices (Groceries) Order, 1987, granting a declaration sought by Dunnes Stores.
The case followed a one-day 40% price reduction on disposable nappies advertised by Dunnes on 2 December 2003. An officer for the Director of Consumer Affairs bought three packets at the retailer’s St Stephen’s Green premises and sought net invoice information as part of an investigation into whether the nappies had been sold below cost. The information was not available at the shop or at Dunnes’ head office.
Dunnes brought the application on 5 December 2003. The parties agreed the issue for the court was whether disposable nappies were “grocery goods” under the 1987 Order. Dunnes accepted it could not obtain the relief it sought if they were covered. The Director accepted that if they were not covered, the exigencies of the common good did not warrant the officer exercising the relevant statutory powers and Dunnes was entitled to the declarations sought.
The order defined grocery goods to include food for human consumption and household necessities, other than foodstuffs, ordinarily sold in grocery shops. Dunnes argued that household necessities meant goods for running and maintaining a home, commonly used for that purpose by its members. It said nappies were personal-care items used by or for very young children. The Director argued that the phrase included items necessary for an individual’s everyday life.
Justice Finlay Geoghegan considered the statutory context and earlier reports on grocery orders. She also treated the definition as penal in context, because selling or advertising covered goods below cost was prohibited and contravention could be an offence. Where the wording was ambiguous, she said, it had to be construed strictly.
The judge was not satisfied the order used clear and unambiguous language to include disposable nappies among household necessities. She concluded nappies did not fall within the class of goods necessary for maintaining a home and commonly used for that purpose by all household members. The court granted the declaration sought. The judgment addressed the agreed classification issue; it did not determine whether Dunnes had in fact sold the nappies below cost.