A Bipartisan Group Of Congressional Lawmakers Call On FTC To Address Economic Discrimination

Forty-three lawmakers from both parties sent a letter on Wednesday to the federal Federal Trade Commission (FTC) requesting the agency investigate, and when appropriate, bring enforcement actions against economic discriminatory action that violates antitrust laws, including the FTC Act and the Robinson-Patman Act.

“The antitrust laws were designed to protect against anticompetitive economic discrimination and excessive concentration,” the letter said. “For example, the Robinson-Patman Act reflects Congress’ determination that discriminatory treatment among competitors is pernicious and should be prohibited.

“But current enforcement efforts have failed to address these anticompetitive harms, and judges have inappropriately limited the scope of the law despite clear statutory language.

“Despite Congress’ broad goals in 1936, the FTC has not brought a case under the Robinson-Patman Act in more than 20 years. …We urge the Commission to make enforcement against economic discrimination targeting small and medium-sized businesses a top priority.”

EMA’s convenience store retailers are concerned about the discrimination practices of food and beverage suppliers in their sales to convenience stores.

This discrimination favors, among others, super stores and big box retailers who are regarded by suppliers as being in a different class of trade from their smaller to medium-sized competitors.

In other words, convenience stores are at a competitive disadvantage when compared to other channels, be it big box, grocery or dollar stores, which often offer less expensive food and beverage products at retail than convenience retailers can obtain from the wholesale level.

Additionally, convenience store retailers are often unable to receive similar packaging sizes from suppliers that are made available to other channels, often regardless of price.

Some convenience store retailers have tried to purchase items at big box retailers since it can be cheaper than the wholesale price.

Unfortunately, convenience store retailers receive retaliatory action from food and beverage suppliers and producers.

“Small business motor fuel marketers continue to get the short end of the stick compared to their big box/dollar store competitors. It is time Congress and the FTC revive the Robinson-Patman Act to help these small businesses compete on a level playing field or else non-enforcement will likely lead to more consolidation and higher prices for consumers,” said Energy Marketers of America (EMA) President Rob Underwood.

While the RPA authorizes private enforcement by retailers, the obstacles to successful enforcement (many of which were fashioned by the federal courts) make private enforcement too difficult and time-consuming, and ultimately too risky from a success standpoint to justify the enormous costs of such litigation.

The only viable means of enforcing the law, therefore, is to encourage enforcement of the RPA by the Federal Trade Commission (FTC).

The RPA prohibits price discrimination when the effect of the discrimination is to lessen or destroy competition. The objective of MSCC is to breathe life back into the RPA law.

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