An attempt by the Director of Consumer Affairs (DCA) to have disposable nappies classed as "grocery goods" was rejected by Ms Justice Mary Finlay Geoghegan in the High Court yesterday.
The dispute arose out of a Dunnes Stores advertisement on December 2nd, 2003, to the effect the company was reducing the price of disposable nappies by 40 per cent for one day only.
An officer of the DCA bought three packets of nappies as part of an investigation into whether the nappies were being sold below cost, contrary to the provisions of the Restrictive Practices (Groceries) Order 1987.
Ms Justice Finlay Geoghegan said the definition of "grocery goods" in the 1987 order meant goods for human consumption and "such household necessaries (other than foodstuffs) as are ordinarily sold in grocery shops ..."
The DCA argued persons conversant with the grocery trade treated disposable nappies as subject to grocery orders, and nappies were sold in shops considered to be grocery shops for the purposes of the grocery orders.
The judge said the issue for her was the meaning of "household necessaries". She was satisfied the definition of "grocery goods" in the 1987 order must be considered to be words used in a penal statute as it was an offence under the 1972 Restrictive Practices Act to contravene a grocery order.
Accordingly, the phrase "household necessaries ... ordinarily sold in grocery shops" must be construed strictly. She had to be satisfied it had a meaning which demonstrated by clear and unambiguous language it included disposable nappies.
Dunnes Stores had argued, arising from a 1955 report of the Restrictive Practices Commission, that the classes of goods defined as "household necessaries" were goods necessary for the running and maintaining of a house and that the defining criteria was the communal use of a product by all members of a household in everyday living.
Ms Justice Finlay Geoghegan said she was not satisfied the definition indicated unambiguously that it covered a class of goods which included disposable nappies. She could not be satisfied it unambiguously included goods other than goods ordinarily sold in grocery shops as were necessary for the running and maintaining of a house and commonly used for that purpose by all members of a household.
Disposable nappies only being used by or for very young children for their personal care did not come within such a class of goods, she found.