Non-reimportation (or “anti-boomerang”) clauses in international distribution contracts
In the practice of international distribution contracts —especially in EU–LatAm relations— , it is common that, after the end of an exclusivity agreement, the manufacturer fears that its former distributor will take advantage of its position to re-import products to the European market or promote parallel sales that destabilize the official network.
Some operators colloquially call these contractual provisions “anti-boomerang clauses” because they seek to prevent products from “returning” to the market of origin against the supplier's commercial strategy.
In legal terms, we are talking about non-re-importation clauses or post-contractual active/passive sales restrictions.
Free competition and limits on post-contractual restrictions
EU Competition Law starts from a clear rule: territorial and customer restrictions are in principle null and void (Art. 101 TFEU and the Block Exemption Regulation on Vertical Arrangements, VBER).
However, there are exceptions that allow a certain degree of protection:
- Know-how protection confidential (time-limited).
- Restriction on reimports from territories with regulated prices (e.g. pharmaceutical).
- Prohibition of active sales to territories where exclusive distribution is still in force.
What is unacceptable is an absolute and generalized ban on sales after the termination of the contract, as this would be considered a disproportionate restriction of competition.
Red flags in non-reimportation clauses
Before drafting an anti-boomerang clause, it's a good idea to review these critical points:
- Excessive duration: : it is prudent not to exceed 12 months, unless there is objective justification.
- Total ban on sales: A distinction must be made between active (prohibitable) and passive (non-prohibitable) sales.
- Unlimited geographic coverage: should be limited to territories where there is a legitimate interest of the supplier.
- Lack of objective justification: The clause must be linked to the protection of the distribution network, not simply the elimination of competition.
Examples of wording compatible with competence
Restriction on re-importation to the EU:
“Following the termination of this agreement, the Distributor shall refrain, for a period of 12 months, from actively marketing the Manufacturer's products in the European Union, to the extent that this could undermine the exclusive distribution network maintained by the Manufacturer in that territory.”
Limitation on active sales:
“The Distributor may not carry out promotional, marketing, or commercial outreach activities aimed at customers located in territories where the Manufacturer maintains exclusive distribution contracts in force.”
Passive Sales Safeguard:
“Nothing in this clause shall prevent the Distributor from fulfilling unsolicited spontaneous orders from customers located outside its assigned territory.”
Frequently Asked Questions (FAQs)
Yes, provided they are proportionate, limited in time and scope , and linked to a legitimate interest (e.g., protecting know-how or existing exclusivity).
Passive: spontaneous order from a foreign customer, without promotion from the distributor.
ActiveTargeted advertising, sales calls, segmented online marketing. The evidence is supported by catalogs, campaigns, and marketing communications.
En general, 6–12 months after the end of the contract.
Longer durations are considered excessive except in sensitive sectors (e.g. luxury, pharmaceuticals).
A clause of precision, not a blocking clause
So-called “anti-boomerang clauses” can be a useful tool to protect the international distribution strategy , provided they are limited to what is strictly necessary.
The balance is delicate: if the restriction is disproportionate, it risks being nullified for violating free competition.
Well-written, however, they provide security to the manufacturer without exposing him to regulatory risks.
RRYP Global, international contract lawyers.