Yang Jianhui: With the development of live streaming sales, the influence of top anchors has rapidly expanded, and the negative impact of low prices has gradually become an important issue. The 'bottom price clause' is a concentrated manifestation of low price issues. near10At the end of the month, the annual "Double11”It's coming soon. It is said that this year's "double11”It is the most comprehensive 'double' in history11”The intense competition permeates into all aspects. Recently, a news story about a top anchor demanding merchants to sign a "bottom price clause" surged to the hot search list, becoming a "double price clause"11”The biggest highlight of this year's disputes among various parties. The "bottom price clause" is a competitive tool related to commodity prices. What is the "bottom price clause", how did it develop, whether it violates relevant provisions of the Anti Monopoly Law, and what issues should relevant parties pay attention to in terms of compliance are all issues of concern to all parties. The following text intends to provide a brief preliminary analysis of these issues, with the aim of ensuring compliance and preventing potential antitrust risks for all parties involved. 1、 The development of live streaming sales and the "bottom price clause" Live streaming sales is a rapidly developing marketing model in recent years and has become an important component of e-commerce. According to statistics,2022In the year, the scale of live streaming sales has reached3.5trillion , accounting for the total online retail sales of physical goods in China29.25% Accounting for nearly 30%. Live streaming sales have impacted numerous businesses and consumers. Most businesses have already ventured into live streaming sales, which has become an unavoidable marketing tactic for most businesses. From the perspective of consumers,2022The user base for live streaming sales reached4.73Millions of people, with per capita annual consumption exceeding7000element For online retail platforms, live streaming sales have become an important business for major e-commerce platforms in China and an important means of competition among retail platforms. Based on different interests and demands, various parties have different attitudes towards live streaming sales. As far as live streaming practitioners are concerned, live streaming has developed into an important industry, according to statistics2022Annual industry enterprises have reached1.87Wan Jia; According to data from the Ministry of Human Resources and Social Security, in2021At the end of the year, the number of practitioners in the live streaming industry nationwide has exceeded1000Ten thousand, the number of industry anchors has reached123.4ten thousand Live streaming has become a huge new employment scenario. In addition, due to its large scale, fast monetization, and high returns, many film and television stars and social "experts" have also joined this industry. For consumers, they are generally optimistic about its success. Due to the ability of top anchors to negotiate with businesses and obtain low prices and other favorable transaction conditions, consumers can buy affordable and high-quality desired products through live streaming sales. In essence, the reason why top anchors have the ability to obtain better conditions in the game with merchants is because they have gathered the power of a massive number of consumers, forming a strong buyer force with hundreds of millions or even hundreds of millions of fans (consumers). This is the only way to obtain a very advantageous position in the negotiation process with merchants, making them powerless to fight back. So, ultimately, consumers have obtained the most favorable trading conditions through their collective power, and the top anchors are the organizers of this collective power. For businesses, many of them have mixed feelings towards live streaming sales. On the one hand, live streaming sales can help brands quickly acquire customers, promote conversion, and allow more brands to be seen, discovered, and experienced. Merchants can achieve rapid monetization, reduce inventory, and improve their competitiveness through scale sales; On the other hand, due to the excessive power of top anchors, businesses are in a disadvantaged position during the cooperation process, often forced to accept various unreasonable conditions, resulting in thin profits or even losses, which is not conducive to the long-term development of the enterprise. For retail platforms, they strongly support live streaming sales. The development of online retail has become a mature industry today, and platforms urgently need to innovate in sales methods toGMVCan continuously grow. Live streaming sales is currently the most important innovative way. Through live streaming sales, the platform as a wholeGMVCan achieve greater growth. For platforms that enter the e-commerce field through short videos, social media, and other means, this marketing approach is more in line with the inherent human interaction attributes of these platforms, and is a very suitable means for them to enter and develop e-commerce business. Therefore, it is natural to vigorously support and develop live streaming sales. Driven by these forces, live streaming e-commerce has experienced rapid development. Among the different factors mentioned above, consumers are the decisive factor. Without the participation of a large number of consumers, live streaming sales cannot develop, live streaming cannot develop into an industry, and it cannot form a top anchor. And low prices are the most attractive aspect of live streaming sales to consumers. It can be said that without low prices, top anchors would not have thousands of fans, and it would be impossible to gather a large number of consumers. Low price is an important characteristic of live streaming sales and also the lifeblood of top anchors. In this marketing model, the demand for merchants to offer low prices has always existed. At present, there is overcapacity in the manufacturing industry and fierce price competition among businesses, which creates a macro market environment where businesses can obtain low prices. In the stage where the scale of live streaming sales is not large and the influence of top anchors is limited, the negative impact of low prices may be relatively small, and people's attention may not be too high. However, with the rapid growth of live streaming sales scale and the rapid expansion of the influence of top anchors, the negative impact of low prices is gradually becoming an important issue. The 'bottom price clause' is a concentrated manifestation of low price issues. There are different interpretations of the so-called "bottom price clause", but it is generally believed that the anchor requires the merchant to offer the most favorable price (including deducting subsidies, discounts, etc.) for a specific product within the agreed time period and agreed channel range. Sometimes it also includes other transaction conditions besides the price, such as logistics distribution, after-sales service, etc. 2、 Preliminary Analysis of the Anti Monopoly Law on the "Bottom Price Clause" The 'bottom price clause' involves multiple stakeholders, including broadcasters, live streaming platforms, merchants, retail platforms, consumers, and other parties; At the same time, it also involves the competitive relationships between different entities, including competition between anchors, competition between live streaming platforms, competition between retail platforms, and maintenance of merchant pricing systems. It is a problem with numerous legal entities and complex legal relationships. From the perspective of competition law, the "bottom price clause" required by top anchors is more likely to cause competition issues, so in terms of anchors, the focus should be on top anchors. 1The competition law issues between top anchors and merchants caused by the "bottom price clause". The competition law issue between top anchors and merchants brought about by the "bottom price clause" is the most fundamental issue. As mentioned earlier, top anchors are essentially organizers of consumer buying power, gathering huge market forces. There is a certain imbalance in negotiation ability between top anchors and merchants. Moreover, in the live streaming sales service market, some top anchors have certain market power. Under this market negotiation position and competitive landscape, top anchors require merchants to sign "bottom price clauses" accompanied by severe punitive clauses, which may conflict with relevant provisions of anti-monopoly laws. Firstly, top anchors require merchants to offer the most favorable price, which may limit their cooperation with other channels, such as being unable to sign more favorable price cooperation conditions with other anchors, and being unable to sell at more favorable prices on other retail platforms, thereby affecting competition among anchors and among retail platforms. In this case, if the top anchor has a dominant market position, it may involve issues of abuse of market dominance, such as attaching unreasonable trading conditions; If the top anchor does not have a dominant market position but has significant market power, it may constitute a vertical monopoly agreement problem. Of course, whether it violates the relevant provisions of the Anti Monopoly Law requires specific analysis based on the situation of different top anchors, and cannot be generalized. Secondly, top anchors require merchants to offer the most favorable price. In order to fulfill this requirement, merchants must maintain a price system that is based on this requirement, which may lead to the possibility of signing agreements with downstream distributors and retailers that fix or limit the resale price of goods, thus achieving a vertical price monopoly agreement. In this case, the behavior of the top anchor may play a role in organizing and assisting this monopolistic behavior, thereby violating Article 19 of the Anti Monopoly Law Of course, whether the top anchor constitutes this illegal behavior requires not only meeting other requirements, but also analyzing its subjective conditions, that is, whether it does not know or should not know whether the merchant has reached and implemented a vertical price monopoly agreement with its downstream distributors and retailers 。 2The "bottom price clause" may lead to competition issues between top anchors and other anchors. The 'bottom price clause' may also trigger competition issues between top anchors and other anchors. The 'bottom price clause' essentially has a limit price function, which requires merchants to not exceed a certain price level for a specific product during a specific time period. If a top anchor signs a "bottom price clause" with the majority of merchants in a certain product category (measured by the number of merchants or sales volume), or signs a "bottom price clause" with some merchants with high sales volume, it may cause other anchors to be unable to cooperate with these merchants in fact. In this situation, it may result in the exclusion or restriction of competition in the anchor service market, thereby affecting the competition in the anchor service market. 3The 'bottom price clause' may lead to competition issues between live streaming platforms. Due to special agreements between live streaming platforms and top anchors, long-term cooperative relationships, or practical limitations, top anchors may only conduct product promotion activities on specific one or a few live streaming platforms; In addition, the "bottom price clause" has the function of restricting merchants from cooperating with other anchors, resulting in a reduction in the number of merchants that other anchors can cooperate with. The effects of the "bottom price clause" will affect competition among live streaming platforms, and live streaming platforms with more top anchors may have a crowding out effect on other live streaming platforms. 4The competition issues that may arise between retail platforms due to the "bottom price clause". The 'bottom price clause' may also bring about competition issues between retail platforms. As mentioned earlier, the "bottom price clause" requires merchants to ensure that their sales prices and other conditions on other channels are not superior to the promotion channel where the top anchor is located. Top anchors generally rely on specific retail platforms, and the final sales of their products need to be achieved through specific retail platforms. The "bottom price clause" actually results in sales prices and other conditions on the specific retail platform where the top anchor is located being superior to other retail platforms. If there are many top anchors on a specific retail platform and a "bottom price clause" is signed, it will affect the competition between other retail platforms and this retail platform. This can actually achieve the platform's most favored nation treatment clause（PMFN）The actual effect. 3、 Preliminary compliance recommendations Due to the significant adverse consequences of violating the Anti Monopoly Law, such as confiscation of illegal gains and penalties for the previous fiscal year's revenue1%to10%Fines, etc. To avoid related risks, based on the above analysis, the following preliminary compliance recommendations are proposed. For anchors, especially top anchors, they can optimize their product promotion service contracts with merchants based on analyzing their own market position, in order to avoid potential antitrust risks. For merchants, even if it is to fulfill the "bottom price clause" agreement with the anchor, they should be cautious in fixing or limiting the resale prices of downstream sellers and retailers, unless they can provide evidence that does not have a exclusionary effect on competition Otherwise, vertical price agreements cannot be signed. For live streaming platforms, caution should be exercised in limiting the cooperation between top anchors and other live streaming platforms, and caution should be exercised in participating in the "bottom price clause" agreements between top anchors and merchants in product promotion services. For retail platforms, they should be cautious in demanding "bottom price terms" from top anchors and participating cautiously in the "bottom price terms" agreements between top anchors and merchants in product promotion services. This article only represents the author's own views) |
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