From Protecting Competitors to Protecting Competition: Rethinking the Robinson-Patman Act

Nearly a century after its passage, the Robinson-Patman Act (RPA) remains one of the most contentious statutes in American antitrust law. A new paper by Melissa Holyoak and Christopher Mufarrige argues that recent efforts to revive aggressive RPA enforcement—exemplified by the FTC's 2024 complaints against Southern Glazer's and PepsiCo—threaten to repeat the mistakes of the past.

The RPA, enacted in 1936, amended the Clayton Act to prohibit price discrimination that harms competition. But as the authors detail, the FTC spent decades in the mid-20th century enforcing the statute as if it banned all price differences—a per se approach Congress explicitly rejected when it scrapped the original Patman Bill in favor of language requiring proof of competitive injury.

The consequences were severe. The FTC's rigid enforcement discouraged price competition, incentivized illegal price coordination among competitors, raised consumer costs by an estimated $6 billion annually (over $31 billion in today's dollars), and ironically hurt the small businesses the law was meant to protect. By the 1970s, the DOJ, the FTC's own economists, and the courts had all condemned this approach.

Central to the paper's critique is the Morton Salt inference—a 1948 Supreme Court ruling allowing courts to presume competitive harm from mere price differences. The authors reveal that the FTC's own Bureau of Economics later found that Morton Salt's discounts were cost-justified and never actually harmed competition. After the FTC's order, Morton Salt simply stopped selling to small buyers—the very businesses the case was supposed to help.

The paper argues that the Supreme Court's decisions in Brooke Group (1993) and Volvo Trucks (2006) firmly established that the RPA protects competition, not individual competitors, and must be harmonized with broader antitrust law. For secondary-line cases—where a buyer allegedly receives a discriminatory discount—the authors propose using the "Raising Rivals' Costs" (RRC) framework, which asks whether the conduct raised competitors' costs enough to harm the competitive process and consumers.

The bottom line: price discrimination can often be procompetitive. Condemning it based on price differences alone, without rigorous economic analysis, risks harming the consumers and competitive markets antitrust law exists to protect.For these reasons effort to “revive” Robinson-Patman remain misguided.

About the author

Sean Heather

Sean Heather is Senior Vice President for International Regulatory Affairs and Antitrust.

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