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.

As Taft noted in a prior bulletin in December 2024, after nearly 25 years of limited RPA enforcement, the FTC has stated its intent to vigorously enforce the RPA’s anti-discrimination provisions. This renewed interest in the RPA was evidenced in December when the FTC instituted an RPA enforcement action against the largest national distributor of wine and spirits – FTC’s first RPA enforcement action in many years.

Notably, this newest enforcement action was filed in the final days of the Biden administration. It remains to be seen whether the incoming Trump administration will continue to pursue these enforcement actions. The votes of the FTC commissioners to institute these lawsuits were split along party lines, with the two Republican commissioners dissenting. One of the dissenting commissioners, Andrew Ferguson, is President-elect Trump’s choice to next chair the FTC.

Taft’s antitrust attorneys are monitoring these developments and are available to help companies navigate the RPA and its impact on their businesses.

¹ See FTC Sues PepsiCo for Rigging Soft Drink Competition.