FTC Nixes Antitrust Lawsuit Against PepsiCo Over Pricing
PepsiCo Inc. scored a major legal victory Thursday after the three members of the US Federal Trade Commission voted unanimously to dismiss an antitrust lawsuit that was filed at the very end of the Biden Administration.
The FTC sued Pepsi on January 17, with the commissioners voting along partisan lines to use a rarely invoked 1930s law called the Robinson-Patman Act that bars price discrimination against retailers.
Former FTC Chair Lina Khan voted for the case at the time, along with the two other Democrats, over the objections of their Republican colleagues.
One of those, Andrew Ferguson, is now chairman of the agency. He, along with the other two Republicans, voted to rescind the lawsuit. Trump fired the two Democratic commissioners in March in a move to exert more control over the independent agency.
A spokesperson for PepsiCo didn’t immediately respond for comment.
“The Biden-Harris FTC rushed to authorize this case just three days before President Trump’s inauguration in a nakedly political effort to commit this administration to pursuing little more than a hunch that Pepsi had violated the law,” Ferguson said in a statement Thursday.
Commissioner Mark Meador said in a separate statement that while he applauds efforts to revive enforcement under the Robinson Patman Act, “I am utterly appalled by the way in which the prior administration went about it in this case.”
In the lawsuit, which was filed in federal court in Manhattan, the FTC said PepsiCo violated the law by charging small retailers higher prices than they do for beverages sold to a large multinational chain store, which Bloomberg previously reported is Walmart Inc. Walmart wasn’t named as a defendant.
Ferguson, Meador and Commissioner Melissa Holyoak all made clear that they Robinson-Patman Act, which had fallen out of favor over the past two decades, is fair game for enforcement.
Ferguson, who was appointed by former President Joe Biden, was elevated to chair by President Donald Trump, who also appointed Meador. Holyoak is a Biden appointee.
Photo: Photographer: Angus Mordant/Bloomberg