The More Things Change, The More They Stay The Same

On September 24, 2014, the Federal Trade Commission (FTC) approved final amendments to the Fred Meyer Guides ("Guides"). The Guides are intended to help businesses comply with the law regarding promotional allowances and services under the Robinson-Patman Act, 15 U.S.C. § 13 (d) and (e) (RPA or "the Act"). See the FTC's discussion of the changes to the Guides, followed by the amended Guides.

Summarizing the changes to the Guides takes little time. In addition to inconsequential stylistic revisions, the changes include: references to the Internet and online advertising; new language strengthening the fact that the Guides do not carry the force of law; new but mundane examples of what constitutes a promotional "service" or "facility" under the Act; and an update to the Guides' brief review of customer and third party liability.

What should matter most to companies is not what the amended Guides say — it's what they don't say. Indeed, this latest update can best be described as a missed opportunity. Rather than build on the Supreme Court's efforts to re-shape a body of law that has long been regarded as inconsistent with the goals of competition, the FTC's "modest" amendments do nothing to alter the landscape of RPA jurisprudence in the modern era. See, e.g., Volvo Trucks North America v. Reeder-Simco GMC, Inc., 546 U.S. 164 (2006); Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993).

The new Guides seem to accept bad law and contentment with its private enforcement. The FTC notes that "its own view" is that "requiring proof of likely injury to competition is sound enforcement policy" and that the FTC will enforce against only those promotional allowances and services likely to harm competition. The FTC, however, explicitly declined to revise the Guides to show how the law could advance this principle.

In essence, nothing has changed.

THE RPA: A LONGTIME SUBJECT OF CRITICISM

The RPA has long been lambasted for its poor draftsmanship and convoluted language. It has been called "something ranking high on the list of things with which economic nonsense is associated." Hugh C. Hansen, Robinson-Patman Law: A Review and Analysis, 51 Fordham L. Rev. 1113, 1114 (1983) (internal quotation marks omitted). Even the Supreme Court has criticized the Act, finding it "complicated and vague in itself and even more so in its context." Fed. Trade Comm'n v. Ruberoid Co., 343 U.S. 470, 483 (1952). While the draftsmanship of the Act as a...