Resumed FTC Enforcement Against Price Discrimination, and Ramifications of a Conscious Uncoupling of Price Discrimination from Robinson-Patman

In September of 2022, FTC Commissioner Alvaro Bedoya gave a speech in which he discussed the resumption of Robinson-Patman enforcement by the FTC.  In November of 2022, the FTC issued a Policy Statement where it indicated a desire to restore “rigorous enforcement” of Section 5 of the FTC Act. That Policy Statement included a willingness to challenge “price discrimination” in circumstances where the conduct does not technically violate Robinson-Patman. The article discusses the ramifications of these developments, including (1) potential FTC Section 5 challenges to practices which do not violate Robinson-Patman (such as price discrimination for non-tangible products); and (2) the impact of the Policy Statement in creating private causes of action for price discrimination claims under state DUTPA statutes.

By Lawrence D. Silverman^[1]

On September 22, 2022, Federal Trade Commissioner Alvaro M. Bedoya (“Commissioner Bedoya”) announced that the Federal Trade Commission (“FTC”) would resume enforcement of the Robinson-Patman Act, 15 U.S.C. § 13(a) et seq. (“Robinson-Patman”), after a multi-decade period of enforcement inactivity. While surprising, this resumption of enforcement of Robinson-Patman would customarily only require the application of well-established legal methodologies to a new set of market realities.

However, the FTC’s subsequent announcement creates the possibility of a paradigm shift for both private and governmental enforcemen