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Author: Wilson, Ryan Session: Fall 2014 Subject: MKT_101_05 Due: 12/15/14 Word Count: Professor: Dr. Barry Berman Principles of Marketing Analysis of the Grey Market, its

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Page 1: Analysis of the Grey Market

Author: Wilson, Ryan

Session: Fall 2014

Subject: MKT_101_05

Due: 12/15/14

Word Count:

Professor: Dr. Barry Berman

Principles of MarketingAnalysis of the Grey Market,

its Activates, and its Evolution

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AbstractIn this paper, I will illustrate how grey markets operate in domestic and

international settings, apply these concepts towards the structure of several large and active grey markets currently in operation, demonstrate the effect of these unauthorized vendors upon manufacturers and retailers in operation within said markets, discuss how these white market operators have attempted to counteract these effects, and conclude by suggesting further actions these companies may implement to work with and around unauthorized resellers.

IntroductionGrey markets or parallel imports are unauthorized channels through which a

firm’s product is sold and resold via unapproved dealers (Anita, & Bergen & Dutta, 2004, p. 63). This is done in order to take advantage of price arbitrage, whereby parallel importers gain profit by buying legitimate products in low-cost areas and selling in regions where the price for these products are higher in either domestic or foreign markets. (Rai & Jagannathan, 2012, p. 53). In both of these markets, parallel imports have remained legal. Domestically, grey market vendors are protected by the first sales doctrine, introduced under section 109 of the Copyright Act of 1976, which states that once the copyright owner of a US-made product sells their good to a consumer, the manufacturer no longer holds the right to control the distribution of that item (U.S Copyright Office, 2001). Therefore the buyer may actively trade that item as they please.

The first sale doctrine also served to protect grey marketers who buy US-manufactured items from foreign markets. In the 1998 Quality King v. L’anza Supreme Court case, copyright holders were restricted from regulating the importation of copyrighted goods into the United States, thus allowing grey marketers to import US-made items from foreign markets for resale (Berman, 2004, p. 52). Grey market vendors thus have incentive to purchase U.S made items in foreign markets in which the product is sold at a cheaper price, and then reimport those products into the country in order to sell at comparatively higher prices (Berman, 2004, p. 52).

In 2013, this liberty was extended due to the decision of Kirtsaeng v. John Wiley, in which foreign editions of textbooks were imported into the United States and sold via eBay (Albanese, 2013). Although these books were manufactured outside of the U.S, the Supreme Court ruled that Kirtsaeng’s sale of lawfully-made copies purchased overseas was protected under the first-sale doctrine, claiming that the law applies to all goods sold in the U.S and does not restrict third parties from selling products based upon that product’s area of manufacture (Albanese 2013). Therefore, patent holders are unable to regulate the sale of any grey market product sold in the United States regardless of its geographic origin once an authorized sale is made (Albanese 2013).

The European Union also applies a form of the First Sale Doctrine within their legal system known as the Exhaustion Principle. According to Article 30 of the Treaty of Rome, a patent holder’s IP rights are exhausted after the corresponding product is sold, thus allowing for the sale/redistribution of that product (Gudigantala & Bicen, 2011, p. 191). This was originally put into law in order to

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allow the free flow of goods between EU member nations, though grey market operators have utilized the principle to extend business (Rai & Jagannathan, 2012, p. 53). However, the Treaty of Rome specifically prohibits the redistribution of goods into international markets, thus grey market vendors operating within Europe must sell between EU nations (Gudigantala & Bicen, 2011, p. 191). Other foreign markets such as Russia, China, and Japan have loose regulation in place to protect IP rights, however these countries ultimately support international exhaustion, which allows for goods to be resold across the world after the initial purchase of a good (Gudigantala & Bicen, 2011, p. 191).

Grey market vendors however can present an advantage to authorized retailers. Retailers will often sell knowingly to the grey market in order to relieve itself from excess inventory or seasonal/fashion items that are entering the end of their product lifespan and therefore will offer limited profits (Hu & Pavlin & Shi, 2013, p. 3). In some cases, manufacturers will offer discounted prices to retailers that purchase large amounts of their product for redistribution, however this amount will often be larger than the retailer’s expected sales for that item (Dasu & Ahmadi & Carr, 2012, p. 1102-1103). In order to limit excess inventory while simultaneously enjoying a manufacturer discount, the authorized vendor will calculate the expected excess and then proceed to sell the determined amount to grey market operators (Dasu et al., 2012, p. 1103). While this benefits the retailer in the short term, the sale will serve to cannibalize the demand for their product, and thus result in reduced profit (Hu et al., 2013, p. 3-4).

And while cannibalization of demand and reduction of profit are the most cited disadvantages of the grey market, further harm can be done to a firm’s marketing strategy in terms of brand image and customer loyalty. For example, grey market vendors operating in the international marketplace will sometimes distribute products in regions where the sale of such products has been intentionally limited or untapped due to concerns over the item’s success in that area (Berman, 2004, p. 54). Some of these products are also manufactured specifically to accommodate a cultural taste or trend, such as Japanese candy or automobiles made to drive on the left or right side of the road, and are not meant for sale outside cultural boundaries. Once the product in question is exposed to these regions, negative customer experiences will reflect back on the brand or firm that manufactured the item even though they did not approve the sale in the first place (Berman, 2004, p.54). Also, since grey market vendors normally do not regulate the storage or handling of their items, product failure may occur for customers who purchase from these dealers (Berman, 2004, p. 54). Once this occurs, the brand will more often than not be unable to extend care services or warranty coverage for these products since the sale originated from a third party, thus the customer will often blame the manufacturing company and cause damage to brand image (Anita et al.,2004, p. 66).

This paper will analyze how these concepts translate into major grey markets currently in operation both domestically and worldwide. In this analysis, I consider how these markets have evolved to the point in which they exist today, reference legal doctrines that apply to the operation of these markets, review the impact of these markets in the areas in which they occur, and indicate whether or

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not parallel importation within the fields discussed will expand in the future. Following the analysis of these markets, I will discuss what action is currently underway to counteract these grey markets and conclude by proposing what I believe should be further done in these marketplaces to regulate grey market activity.

Pharmaceuticals

The pharmaceutical grey market has flourished in recent years both in the United States and the European Union. Between 2000 and 2005, the United States experienced prevalent medication shortages, which allowed grey market pharmaceuticals to take root within the country (Mahugh, 2013). These medication shortages have continued to occur in recent years; in a report released by the Food and Drug Administration (FDA) in 2012, the FDA recorded nearly 200 new medication shortages since the beginning of the year (GAO, 2014, p. 13). These new shortages are in addition to the 255 respective medication shortages the FDA reported in the previous year of 2011 (GAO, 2014, p. 13-14). Since many of these medications are life saving and require continuous consumption, the grey market becomes the most attractive alternative for those lacking these drugs, both for individual consumers and health-care providers such as hospitals (Mahugh, 2013).

When a grey market company becomes aware of an emerging medication shortage, pharmaceutical products are obtained via wholesale distributors, pharmacies, and other grey market entities (Mahugh, 2013). Although some pharmaceutical manufacturers have admitted to selling products to unauthorized distributors who then sell to grey market entities, the majority of grey medication comes from pharmacies (Rockefeller & Harkin & Cummings, 2012, p. 16). According to a 2011 investigation into grey market pharmaceuticals, 21 of 25 pharmacies claimed to have been contacted by grey market companies asking to have the pharmacy buy medication from manufacturers and wholesale distributors upon their behalf (Mahugh, 2013). When successful, the pharmacy acts as a purchasing agent between the wholesaler and the grey market, acquiring drugs from a list of

Figure 1: Active Drug ShortagesSource: GAO, 2014

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medication in short supply that the wholesaler provides the pharmacy (Mahugh, 2013). These pharmacies then turn over these drugs to grey market companies in large amounts, who pay between 10-15 percent over the invoice amount (Mahugh, 2013). However, grey market operators may also create fake pharmacies in order to create a direct channel to the wholesaler (Rockefeller et al., 2012, p. 21). These shell pharmacies operate by obtaining a temporary license from the state after completing the application forms and applicable fees required under state law (Mahugh, 2013). Though state law often requires pharmacies to undergo inspection in order to gain permanent licenses, grey market pharmacies will work under temporary license with permanent license pending inspection until the time comes to abandon the shell company and reestablish under a different identity (Mahugh, 2013). This practice is risky and lays close on the line between grey and black markets.

Once a grey market company has obtained a supply of pharmaceuticals, they market their products to dispensing hospitals and non-colluding pharmacies (Rockefeller et. al, 2012, p. 7). Due to prevalent shortages of medication within the proper channels, many organizations have no choice but to accept these grey market drugs (Rockefeller et al., 2012, p. 2-3). Independent consumers may also gain access to these grey medications through the worldwide web, where 11 percent of Americans have reported to purchasing less expensive prescription drugs from foreign markets (Bandyopadhyay, 2010, p. 96). However, grey market distributors will gouge the prices of their drugs when selling in bulk to sources such as hospitals, and depending on their availability will mark-up the price between 650-900 percent of its original amount (Mahugh, 2013). In the case of some medications such as Fluorouracil, a drug cited by the World Health Organization as one of the most important medications in a basic health system, the mark-up can be upwards of 8,000 percent (Rockefeller et al., 2012, p.13). Also, purchasing from grey market sources present real risk in terms of product reliability, as methods used to handle and store these medications varies between grey market operators (.

The trade of grey market pharmaceuticals also thrives within the European Union, as it is estimated that pharmaceutical companies lose nearly $3 billion to grey market drug sales every year (Rai & Jagannathan, 2012, p. 54). Due to the implementation of the Exhaustion Principle within the EU, pharmaceuticals are allowed to be freely sold by firms other than those holding IP rights of those pharmaceuticals, though this only is applicable for sale between EU member nations (Rai & Jagannathan, 2012, p. 56). Other than being allowed to operate in this market, the success of grey market pharmaceuticals is due to the unique pricing environment enforced within Europe. The majority of EU member nations implement independent price controls upon pharmaceuticals, each specifying that the launch price be set at a minimum or average relative to other countries (Kyle, 2007, p. 5). Thus, when pharmaceutical firms attempt to launch at a uniform price, it can lead to lengthy delays in countries that prefer to set lower prices. (Kyle, 2007, p.5). This environment of price regulation lead to large differences in the medications available across European countries (Kyle, 2007, p. 5), presenting obvious benefits to grey market vendors operating between nations in the European Union.

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However, parallel importers within the pharmaceutical marketplace must adhere to regulation implemented across the EU. A parallel importer must obtain a license to import a pharmaceutical product; this license specifies the chemical composition and dosage form the parallel importer is allowed to sell between countries (Kyle, 2007, p.6). This license is highly specific in what is and is not allowed to be sold, for example an importer is not allowed to substitute a 10 mg tablet with two 5 mg tablets of the same chemical composition, not can the 10 mg tablet be substituted with alternate vehicles such as a capsule (Kyle, 2007, p.6). Grey market vendors also must work around regulation that deters pharmacies from purchasing third party pharmaceuticals. A number of countries such as Germany, Denmark, and Sweden fix the profit margins of pharmacists, thus giving those pharmacists little or no incentive to take advantage of the lower prices offered by grey market vendors (Kyle, 2007, p. 6). Additionally, the Netherlands and the United Kingdom employ “clawback mechanisms” to guard against parallel imports. Essentially, these clawback mechanisms force any savings gained by purchasing grey market pharmaceuticals to be share with both the pharmacist and the government health authority, thus diminishing incentive to buy parallel imports (Kyle, 2007, p.6).

Electronics and Smart Phones

The grey market for information technology is perhaps the most far reaching and profitable, with monetary losses due to IT grey markets estimated to be billions of dollars (Autrey & Bova, 2012, p. 394). It is the one of the most worldwide grey markets operating today, as illustrated via one of the major methods grey market operators acquire profit: taking advantage of newly released electronics by importing into markets in which the technology has not yet been released. During the release of the IPhone 6 for example, the majority of the world gained access to the phone on September 19th, however the iPhone suffered a postponed release in China and Hong Kong (FlorCruz, 2014; Kan, 2014). To take advantage of this, grey market vendors imported new IPhones into these markets once the product was released to the rest of the world and then sold the product for extraordinarily high prices. Due to the high demand for new technology in these regions, these prices were often marked up to be over $1,000 US dollars, with prices in Hong Kong specifically being raised to over $2,500 US dollars (FlorCruz, 2014; Tam, 2014). Of course these prices dramatically decreased as these markets came closer to selling the new IPhones, and after the release of the IPhone 6/IPhone 6 Plus in these areas grey market vendors were forced to lower their prices below sale price in order to compete (Kan, 2014).

Yet this example highlights one of the most profitable attributes of the IT grey market; since new technology is released on almost a yearly basis, grey market vendors are able to take advantage of the short product life cycle of these commodities by constantly taking advantage of changing prices across the world. Also, since the demand for IT products is universal and growing, grey market operators will continue to enjoy steady demand and increasing profit for years to come. According to the International Data Corporation (IDC) worldwide tablet

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shipments are expected to grow at a compound annual growth rate (CAGR) of 9.4% from now until 2018, thus increasing tablet shipments from 218.8 million in 2013 to 342.4 million in 2018 (Zino, 2014, p. 3). Analyzing this expected growth through the lens of monetary value, tablet shipments will grow from $78.1 billion in 2013 to $107.7 billion in 2018 (Zino, 2014, p.3). The IDC also estimates worldwide smartphones shipments to increase at a CAGR of 12.3%, increasing from 1.0 billion units in 2013 to 1.8 billion units in 2018 (Zino, 2014, p. 3). Mobile phone shipments in general are expected to increase at a 4% CAGR from 1.8 billion units in 2013 to 2.2 billion in 2018 (Zino, 2014, p. 3). Analyzing this projected expansion based upon past growth in the IT industry, grey market sales will expand alongside authorized IT commerce, as was the case between 2002 and 2008 when grey market activity in the IT industry increased $18 billion in sales and thus caused authorized retailers to lose an additional $5 billion in profits (Gudigantala & Bicen, 2011, p. 186).

Growth in the IT grey market however will be due to more than just alternating product releases, as mentioned previously continually changing prices allow grey IT operators to sell cheaply in markets across the world via arbitrage, the practice of taking advantage of a price difference between two markets by buying cheaply in one market and selling high in another (Gudigantala & Bicen, 2011, p. 190). Similar to grey market operators in the pharmaceutical industry, IT grey market vendors will also buy products directly from an authorized distributor or reseller at a discounted rate. As in the pharmaceutical industry, these authorized partners sell to the grey market in order to take advantage of significant discounts offered by the manufacturer for buying in large quantities while minimizing inventory holding costs and excess supply (Gudigantala & Bicen, 2011, p. 190). When the grey market vendor then practices arbitrage in a chosen market, that market’s consumer will perceive the price offered to be significantly lower than is normally available while the vendor still makes profit from the sale (Gudigantala &

Figure 2: Worldwide Tablet Shipment and Growth RatesSource: Zino, 2014

Figure 3: Worldwide Mobile Phone ShipmentsSource: Zino, 2014

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Bicen, 2011, p. 190). This lower price is one of the main reasons consumers purchase grey market technology, especially online where consumers are more often hunting for lower priced items instead of examining their quality (Bandyopadhyay, 2010, p. 97). In fact, this online presence serves to bolster grey market sales by making products widely available to consumers. Web sites such as pricegrabber.com, shopzilla.com, etc. serve to direct IT sales towards the grey market, which often are able to deliver products quickly to their costumers (Bandyopadhyay, 2010, p. 97).

Despite several negative factors the grey market presents to authorized IT channels, some IT companies perceive unauthorized distributors as a positive influence upon their business practices. For example, grey market operators will often sell products in regions or countries that have remained purposefully untapped by an IT company due to potential risks involved in expanding into markets where their product(s) may not gain traction and cause a substantial loss of funds (Gudigantala & Bicen, 2011, p. 192). However, by allowing the grey market to expand into these territories, the company may then observe the success or failure of the product and then adjust accordingly without needing to sacrifice resources themselves (Gudigantala & Bicen, 2011, p. 192). Of course the failure of such products within these untapped markets may then cause brand image to decrease in the eyes of the consumer (Berman, 2004, p. 54). This risk is increased when considering that grey market entities will handle and care for their products using unregulated and varying methods, thus increasing the likelihood that those products will fail. The failure of these products will reflect especially on that products brand rather than the grey market itself, as most IT companies do not care for or warranty such products (Gudigantala & Bicen, 2011, p. 186). IT grey markets may also serve as a positive augmentation to a company’s supply-chain. The nature of the IT industry requires that companies remain flexible a constantly adapting marketplace in order to maintain a competitive edge. However, since altering the supply-chain to accommodate for the changing market takes a considerable amount of time, a company may be able to rely on the grey market to fill in the gaps and keep their brands relevant while they conform to such changes (Gudigantala & Bicen, 2011, p. 192). The grey market may also serve as a means of regulating a company’s supply chain when excess inventory becomes a large enough problem or if channel members need to make room for new products. Yet this too may become a problem once the supply-chain as fully made necessary changes, as grey market operators will already have gained a substantial foothold in the emerging market and thus cannibalize sales (Gudigantala & Bicen, 2011, p. 192).

Automobiles

China has remained the world’s largest auto market for the past five years, with 22 million vehicle sales taking place in the country in 2013 alone (Jing, 2014). Major luxury car manufactures have thus enjoyed increasing sales growth from the country’s expanding auto market; in 2013 Rolls-Royce reported an 11% sales increase from the Chinese mainland, which accounted for 40% of its global sales that year (Jing, 2014). In January of 2014 Daimler, the parent company of Mercedes,

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announced to have sold 24,199 cars that month, an increase of 44% from last year (Goldstein, 2014b). Additionally, luxury auto brands benefit from a heavily increased profit margin for vehicles sold within the Chinese marketplace, as prices for these products often double if not triple the selling price offered in U.S and European markets (Bunkley, 2014). According to The Chongqing Morning Post newspaper in August 2013, the profit rate for the majority of luxury vehicles sold in China is about 37% per sale, whereas the industry standard is 20% (Jing, 2014). For example, the BMW X6, one of the most popular cars sold in China, sells typically in American markets for $61,900 unloaded, however that same vehicle is sold by Chinese dealers at a price of 1.06 million Yuan, or $171,000 (Bunkley, 2014).

Thus, grey market arbitragers have found an extraordinarily lucrative opportunity in exporting luxury vehicles bought in the United States into the Chinese grey market to be sold at discounted prices. When sold, price of these exported cars are generally 10% lower than the price offered by legitimate Chinese competitors (Jing, 2014), which still allows grey market distributors to gain substantial profit from the sale, even after these distributors pay importation taxes and 25% tariffs on new vehicles brought into the country from abroad (Bunkley, 2013). However, Chinese buyers will then face difficulties when repairing or maintaining their grey market vehicles, as the necessary parts required for the product’s upkeep may prove difficult to acquire (Jing, 2014). Additionally, these buyers will not be able to return their car in the case of a recall by the original manufacturer (Bunkley, 2014). Regardless of these risks, it is estimated that over 35,000 vehicles are exported and sold to Chinese buyers every year (Goldstein, 2014b).

U.S Customs regulations do not allow for new vehicles to be exported by anyone other than that vehicles manufacturer (Bunkley, 2013), thus the majority of the cars sold by grey market operators in China are second-hand (Jing, 2014). However, some exporters have bought new vehicles from manufacturers using legally questionable means in order to turn over the products in the Chinese auto market. To obtain these vehicles, grey market distributors will sometimes hire a straw-buyer to purchase a specified vehicle from a U.S dealership using either cashier’s check or wired funds provided by the distributor (Elkin 2014; Goldstein, 2014a). These straw buyers then turn over the car to the grey market operator

Figure 4: Price JumpsSource: Bunkley, 2014

Car Model U.S Price (not including shipping)

Chinese Price (not including shipping)

Mercedes Benz GL63 $188,560 $319,190Range Rover $84,225 $241,480BMW X6 xDrive35i $61,900 $171,326Porsche Cayenne $49,600 $148,594Audi Q7 $47,700 $133,326Tesla Model S 85 $81,070 $121,370

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normally for a small fee (usually a few hundred dollars), after which time the exporter will transport the vehicle into the Chinese market (Goldstein, 2014b).

However, this practice has come under fire in the United States due to a investigation and crackdown of grey market exporters headed by the Secret Service and the Department of Homeland Security which took place between late 2013 and early 2014 across eleven states (Bunkley, 2014). This crackdown led to the seizure of several luxury cars, funds, and other assets from known grey market corporations such as the Efans Trading Corporation and the Automotive Consultants of Hollywood, each of which are currently being prosecuted in civil lawsuits (Goldstein, 2014b). Ely Goldin, a defense lawyer representing the Efans Trading Corp., argued that the government crackdown was based upon complaints from automobile manufacturers rather than the legality of grey market exportation, and that fundamentally the actions taken by entities like the Efans group do not violate U.S law (Goldstein, 2014a; Bunkley 2014). “Why should a buyer of a car be prohibited from exporting a car after he paid top dollar for it?” said Goldin. “If there is an arbitrage opportunity, someone will always try to make a buck and there is nothing wrong with that. It’s called capitalism. (Grossman, 2013)”

Automakers have privately forbidden their dealers from selling to known exporters for years, and will often have their dealerships maintain lists of known exporters in order to bar them from sale. Some brands such as BMW implement non-export provisions that forbid buyers from bringing their vehicle outside the U.S for a set period of time, normally one or two years (Grossman, 2013). However, acting against these provisions is classified as a breach of contract rather than a criminal action, and thus it is the automaker’s responsibility to pursue action against the buyer (Grossman, 2013). Dealerships who sell to exporters, even unknowingly, have faced severe consequences from their brands, including loss of future inventory, chargebacks, or even termination of their franchise (Bunkley, 2014). Between 2008 and 2013, BMW, Land Rover, Mercedes-Benz, and Porsche imposed a total of $30.4 million in chargebacks against their dealers, with Land Rover accounting for $5.4 million of that amount (Bunkley, 2014). These automakers have claimed that their losses are five times greater than the penalties imposed upon their dealers (Bunkley, 2014). When asked about their involvement in the U.S crackdown of grey market exporters, BMW North American spokesperson Kenn Sparks stated, “The BMW Group has been working closely with federal authorities for almost two year to stop illegal exports of our vehicles from the U.S. Illegal exports deny legitimate customers here in the U.S the popular vehicles, which are in high demand. (Goldstein, 2014b)” According to New York Times writer Matthew Goldstein, “Federal authorities briefed on the matter but not authorized to discuss the situation said the effort was not being coordinated by the Justice Department and was more the case of individual jurisdictions going after a business activity that appeared questionable. (2014a)”

The legal cases against grey market exporters involved in the crackdown are still ongoing, but unless major legal action goes into place through these trials, luxury car brands will most likely need to continue to consider the grey market in their business practices. On one hand, this heavy regulation of dealerships restricts dealers from utilizing the grey market as a resource. Sales made to grey exporters

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are often made for the vehicle’s sticker price (Bunkley, 2014), and could be use to regulate inventory in order to make room for new models that are released on a yearly basis. Demand from grey market exporters is extremely high, as demonstrated by Rich Allan, general manager of Jaguar/Land Rover Cincinnati, who claimed that his dealership’s entire inventory could be sold in a week if exporters were not screened out (Bunkley, 2014). Therefore, if sales to exporters were regulated to the point where losses from cannibalized business abroad were balanced by domestic sales, the supply-chain could benefit overall. On the other hand, restricting domestic sales to American drivers ensures that dealerships maintain customers that will come back for service work and further business (Bunkley, 2014). The current regulation also allows luxury brands to maintain control of their international business model without needing to account for the grey market as a rouge element. Further this regulation minimizes negative customer feedback from grey market buyers in China who face product-quality risks from imported merchandise such as higher warranty costs and possible mishandling of the vehicle prior to purchase.

Discussion: What is being done and What Should be done

The grey market is a symptom of unmet demand, arbitrage opportunities between two or more markets, and excess inventory on the part of retailers. It is a natural consequence of a capitalist marketplace and the free movement of goods that allows buisnesses to function on a fundamental level, and therefore it must be addressed as a force that can be suppressed or taken advantage of since it cannot be eliminated. Legislation currently in place in both the U.S and many forgein countries will also keep the grey market in play for years to come, as the first sales doctorine and the exhaustion principle have only been strengthen by court cases in the past few decades. Observing the grey markets analyzed in this article it is clear that actions being taken to work against the grey market have either been

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