PepsiCo Sued By FTC For Price Discrimination

On Jan. 17, after decades of inactivity, the Federal Trade Commission (FTC) instituted a second enforcement action under the Robinson-Patman Act, 15 U.S.C. § 13 (RPA). The RPA is a federal statute that prohibits price discrimination and discrimination in the provision of promotional payments between competing resellers. The FTC sued PepsiCo in the Southern District of New York accusing PepsiCo of violating the RPA by favoring one of its large, big box retailer customers (reported to be Walmart) to the detriment of its smaller customers who compete with Walmart in the resale of PepsiCo's products.¹ The FTC asserts PepsiCo's alleged discriminatory conduct denied Walmart's competitors the ability to fairly compete and ultimately resulted in higher prices for consumers.