This week the Federal Trade Commission (FTC) reopened and extended the deadline until March 4, 2013 to provide comments to aid the FTC in its review of the Fred Meyer Guides (“Guides”). The Guides clarify the Robinson-Patman Act of 1936 (“Act”) which is intended to help small retailers compete against the larger chain stores by prohibiting anti-competitive price discrimination that could harm competition between the smaller and larger retailers. The Guides explain how manufacturers and wholesalers can provide advertising allowances and other promotional payments and services to retailers in a manner that does not discriminate and thereby run afoul of the Act which requires that such benefits must be provided on proportionately equal terms to all competing customers.
Although the request for comments asks numerous questions, the FTC has highlighted the following as the ones it is most interested in:
(i) Whether there is a continuing need for the Guides;
(ii) Whether there have been changes in the case law that should be reflected in the Guides;
(iii) How, if at all, the Guides should be revised to account for new developments in commercial practices since 1990 (when the Guides were last reviewed and amended) such as the growth of the Internet and means of promoting products;
(iv) What costs and benefits the Guides provide; and
(v) What costs and benefits the Guides ultimately have for consumers.