The Robinson-Patman Act (the Act or law), the antitrust law prohibiting "price discrimination," has long been a source of confusion and a target of criticism by courts, commentators, and practitioners. Even the Supreme Court has acknowledged that the law "by no means represent[s] an exemplar of legislative clarity."1 Many critics have called for the repeal of the law, noting that it is often at odds with the efficiency and consumer welfare goals of the other antitrust laws. Indeed, in 2005, the Antitrust Modernization Commission recommended that the Act be repealed in its entirety.2 Nevertheless, the law has survived, and while the Federal Trade Commission (FTC or Commission) has dramatically scaled back its enforcement of the law over the years, the risk of private treble damage actions remains quite real. Those who choose to ignore the Robinson-Patman Act today do so at their peril.
Some forty-five years ago, at a time when the Federal Trade Commission was still bringing many Robinson-Patman enforcement proceedings, the Commission issued a set of guidelines designed to assist businesses in complying with the provisions of the Act governing discrimination in promotional payments and services - i.e., "non-price" discrimination. (The Robinson-Patman Act provision restricting discrimination in price is set forth in Section 2(a) of the Act; the provisions restricting discrimination in promotional payments and services are set forth in Sections 2(d) and 2(e) of the Act.) These guidelines, formally known as the "Guides for Advertising Allowances and Other Merchandising Payments and Services," (Guides or Fred Meyer Guides) are colloquially known as the "Fred Meyer Guides" in honor of a Supreme Court decision that had suggested the need for such guidelines. See FTC v. Fred Meyer, Inc., 390 U.S. 341, 349 (1968). The last time the FTC revised the Fred Meyer Guides was in 1990.
In 2012, the FTC issued a request for comments for its first revision of the Guides in over twenty years.3 Among the questions raised by the FTC was whether it should eliminate the Fred Meyer Guides altogether. However, after considering comments from several sources, including the American Antitrust Institute, the Section of Antitrust Law of the American Bar Association, and a few trade organizations, the Commission has decided to retain the Guides, albeit with some modifications to reflect developments in judicial interpretations and the nature of market competition since the last review of the Guides. The entire 48-page summary of the FTC's changes (and explanations for the changes) can be found at 79 Fed. Reg. 58,245 (Sept. 29, 2014). Some of the more notable aspects of the FTC's revisions are as follows: