Biden’s antitrust playbook values shots on goal
The author is a Reuters Breakingviews columnist. The opinions expressed are his own.
By Ben Winck
WASHINGTON, Jan 25 (Reuters Breakingviews) -Joe Biden is reaching deep into history to sustain his attack on perceived anticompetitive behavior. In addition to targeting a 15-year-old Google deal, the U.S. president’s trustbusters are dusting off an arcane law to probe potential price discrimination. The broader strategy will keep big companies on their toes.
The latest Federal Trade Commission investigation hinges on the 1936 Robinson-Patman Act, which bars suppliers from offering large chains discounts at the expense of smaller peers. It was designed to crack down on the Great Atlantic & Pacific Tea Company, which dominated the grocery industry at the time. Coca-Cola KO.N and PepsiCo PEP.O are today’s guinea pigs, according to a Politico report. A statement from the agency suggests the pharmaceutical industry could be next.
Reviving Robinson-Patman is part of a larger effort by the White House to curb perceived harm from consolidation. Biden signed an executive order to ramp up antitrust inquiries, citing excessive merger activity for lifting prices. The FTC’s newest commissioner, Alvaro Bedoya, also invoked the price discrimination law, which hasn’t been used since a settlement with spice-maker McCormick MKC.N in 2000, during a speech.
A 2018 study found that three-quarters of U.S. industries have grown increasingly consolidated over the last two decades, helping boost profit margins, but recent events also theoretically bolster the case. In the third quarter, Coca-Cola raised prices by 12% compared to 3% broadly for nonalcoholic beverages, according to the U.S. Bureau of Labor Statistics. Pepsi jacked up its drink and snack prices by 17%, far higher than the national average. The companies cited higher costs, but their bottom lines grew by even more than what they were charging customers.
This aggressive antitrust approach has produced only mixed results, however. The government successfully blocked the merger of book publishers Penguin Random House and Simon & Schuster, but also has lost three times in court, leaving UnitedHealth UNH.N, Booz Allen Hamilton BAH.N and Illumina ILMN.O to proceed with their challenged transactions.
The administration keeps trying different angles. A bold effort to block the Microsoft-Activision Blizzard deal is pending. The Justice Department sued Alphabet’s Google on Tuesday, arguing that the search giant abused its market dominance in advertising following acquisitions in the 2010s. There was a time when competition authorities preferred a clearer path to score against what it considered monopolistic behavior. Biden’s playbook values taking as many shots as possible.
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The U.S. Justice Department on Jan. 24 filed a lawsuit against Alphabet-owned Google alleging the search giant abused its dominance in digital advertising. In the complaint, regulators argue that Google used “anticompetitive, exclusionary, and unlawful means to eliminate or severely diminish any threat to its dominance over digital advertising technologies.”
Separately, the U.S. Federal Trade Commission, under the Robinson-Patman Act, is investigating Coca-Cola and PepsiCo over potential soft-drink price discrimination, Politico reported on Jan. 18, citing unnamed sources.
Referencing the rarely used 1936 law, Alvaro Bedoya, who joined the agency as a commissioner in May, said in a speech on Sept. 22 that the FTC should focus on fairness in antitrust enforcement.
U.S. President Joe Biden enacted an executive order on “promoting competition in the American economy” on July 9, 2021, tasking the FTC with reviewing potential violations of the Robinson-Patman Act, among other antitrust rules.
Editing by Jeffrey Goldfarb and Amanda Gomez
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