The Federal Trade Commission and Department of Justice released their final version for new merger enforcement guidelines on Dec. 18. The final guidelines include substantial revisions to the existing standards, introducing new considerations for mergers that enhance buyer power.
In a significant shift, the guidelines issued strongly consider how buyer power impacts competition amongst rival firms and trading partners, a major contrast to the current guidelines that largely ignore how buyer power abuses impact competition.
These updates signify a notable departure in merger enforcement, reflecting an effort to address concerns raised by the National Grocers Association (NGA) with federal enforcers. In comments submitted in September to the FTC and DOJ on the proposed guidelines, the NGA emphasized the need for agencies to scrutinize how dominant firms utilize their bargaining leverage to impose discriminatory terms on their rivals.
NGA highlighted the substantial advantage enjoyed by dominant food retailers, who can exert pressure on grocery suppliers to secure more favorable terms, encompassing pricing, promotions, payment terms and product availability.
“Following decades of consolidation, the current grocery landscape is dominated by a few national chains who wield so much economic influence they can undercut competitors simply by demanding preferable treatment from suppliers. This pattern has resulted in anticompetitive economic discrimination against independent grocers and their customer base,” said Chris Jones, SVP of government relations and counsel at NGA. “The revised Merger Guidelines released today signifies a major course correction in antitrust enforcement that recognizes the competitive dangers of buyer power.”
Washington, D.C.-based NGA is the national trade association representing the retail and wholesale community grocers that comprise the independent sector of the food distribution industry. An independent retailer is a privately owned or controlled food retail company operating a variety of formats. The independent grocery sector is accountable for about 1.2 percent of the nation’s overall economy and is responsible for generating more than $250 billion in sales, 1.1 million jobs, $39 billion in wages and $36 billion in taxes.
NGA members include retail and wholesale grocers located in every congressional district across the country, as well as state grocers’ associations, manufacturers and service suppliers.
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