Bipartisan Calls To Reinvigorate The Robinson-Patman Act Mask Deep Differences Over How To Interpret The Act

A PDF of this article is available here. 

The Robinson‑Patman Act of 1936 (RPA or the Act), 15 U.S.C. §§ 13–13c, has received bipartisan calls for renewed use after decades of very little private or government invocation of the statute. Lawmakers from both parties have called for use of the Act particularly in the food, retail, and consumer goods sectors. The surface agreement, however, masks a deep disagreement about how to interpret the Act. Although an uptick in activity can be expected, it will not be easy for private plaintiffs or the government to win RPA cases. 

The RPA is a Depression-era law that prohibits a seller from charging competing buyers different prices for commodities of the same grade and quality unless specific affirmative defenses apply. Congress enacted the RPA in response to its perception that the first chain stores and other big buyers had increased “market power” and were using “coercive practices” that threatened the ability of small independent retailers to compete. Great Atl. & Pac. Tea Co. v. FTC, 440 U.S. 69, 75–76 (1979). 

There has always been tension between the antitrust laws’ protection of competition and the RPA, written by legislators who seemed more focused on protecting competitors than on protecting the process of competition itself, which often harms competitors.¹

One way to resolve the tension is to treat the RPA completely differently from other antitrust laws and use it to protect competitors for their own sake.² That path arguably was endorsed by the Supreme Court in early RPA cases, notably FTC v. Morton Salt Co., 334 U.S. 37 (1948).

The polar opposite approach is to treat the RPA as a dead letter. Before 2024, the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) had effectively ceased enforcement. And they had done so in keeping with a wealth of literature suggesting that the RPA is inherently anticompetitive.³ The DOJ minced no words, almost half a century ago, when it concluded that widespread enforcement of the statute’s “narrow, protectionist objectives” would have a “deleterious impact upon competition.”⁴

The third approach is to attempt to thread the needle by construing the RPA’s basic prohibitions and its defenses—all of which are complex—in a manner that serves the general procompetitive purposes of the antitrust laws. Both the DOJ and the FTC signed a brief submitted to the Supreme Court in 2005, in which they contended that the RPA “is no exception” to the “axiomatic” proposition that “the antitrust laws were passed for ‘the protection of competition, not competitors.’”⁵

Recent events herald a reopening of the debate among those approaches. Toward the end of the Biden Administration, the FTC brought the first enforcement actions under the RPA in decades in the name of preventing suppliers from favoring “megastore chains” over disfavored “mom and pop” independent retailers.⁶ In the course of this revival, government officials cast the RPA as a “fairness mandate” within the antitrust laws, designed to protect small business.⁷ 

Now, in the second year of the Trump Administration, there are emerging signs that the renewal of interest in RPA litigation may be more durable—and, at least on the surface, more bipartisan—than anticipated. There appears to be a high likelihood of increased RPA actions in the near term: 

• On January 20, 2026, Senator Chuck Grassley (R-IA), together with five Republican colleagues, urged the DOJ and the FTC to investigate allegedly discriminatory pricing and supply practices in the grocery industry using the RPA, which the senators described as a powerful tool to “combat economic discrimination and maintain a level playing field where the smallest of entrepreneurs can compete with the largest of companies.”⁸ However, these senators stressed the need for “prudential case selection” and “sound and neutral analysis” to ensure that RPA actions “promote competition and protect consumers.” 
• In parallel, on January 28, 2026, Senator Elizabeth Warren (D-MA) and 15 Democratic colleagues issued information requests to PepsiCo Inc. regarding PepsiCo’s alleged violation of the RPA by its purported agreements with a retailer to create a “price gap” between the retailer and its competitors in which PepsiCo would guarantee bigger discounts for the retailer.⁹ In a letter dated March 28, 2024, the same lawmakers had urged then-Chair Lina Khan to consider using the RPA to combat concentration and preferential pricing among food retailers and retail chains. Consistent with calls for the use of the RPA as a fairness mandate, the letter argues that the DOJ and the FTC should use the RPA to protect smaller competitors from coercive tactics of their larger rivals (e.g., preserving a level playing field, protecting independent retailers and smaller producers from discriminatory terms, preventing community disinvestment when independents are driven out). Unlike the Grassley letter, this letter said nothing about aligning RPA enforcement with the broader antitrust goal of protecting competition and consumers.

Notwithstanding the shared focus on the RPA, the Grassley and Warren letters, with their divergent emphases on using the RPA for pro-competitive ends or as a tool to promote fairness among competitors, illustrate potential fault lines for any future litigation. Subtle though the difference may appear on the surface, it may be outcome-determinative in many cases, and defense counsel must be armed with theories as to how proposed interpretations are inconsistent with the broader goals of the antitrust laws.

They will have plenty of ammunition. The Supreme Court has cautioned against interpretations of the RPA that would promote “price uniformity and rigidity” in the name of protecting competitors in a way that would be “in open conflict with the purposes of other antitrust legislation,” i.e., the promotion of competition. Volvo Trucks N. Am., Inc. v. Reeder-Simco GMC, Inc., 546 U.S. 164, 181 (2006) (citation omitted). Volvo Trucks, a case in which HSF Kramer’s Roy Englert represented the victorious side, was the most recent time that the Supreme Court has addressed the RPA.¹⁰

As the legal landscape develops, through new complaints and case law, companies operating in the food, retail, or other consumer goods sectors should be aware of the prospect of increased RPA-focused activity and should consider their exposure. 

Below, we briefly address (i) the structure of the RPA and so-called secondary-line claims for price discrimination, which are the category of RPA claims most frequently at issue; (ii) a summary of developments in the past year that may signal an increased appetite for ramped-up activity by the U.S. antitrust agencies; and (iii) where we expect the key battle lines to be drawn in RPA litigation going forward.

The structure of the RPA

The RPA amended Section 2 of the Clayton Act of 1914 (the Clayton Act), 15 U.S.C. §§ 12−17. While Section 2 of the Clayton Act prohibited price discrimination if the effect of the conduct was to substantially lessen competition or tended to create a monopoly, it carved out price discriminations based on “differences in the grade, quality or quantity of the commodity sold.” Boise Cascade Corp. v. FTC, 837 F.2d 1127, 1138 (D.C. Cir. 1988) (citation omitted). By amending Section 2 to remove the “quantity” exception, Congress sought to address the “unwarranted price favoritism shown by suppliers to large buyers.” See FTC v. Sun Oil Co., 371 U.S. 505, 516 (1963). 

Government enforcers and private plaintiffs may bring RPA actions. See 15 U.S.C. §§ 15 (private plaintiffs may seek treble damages), 26 (private plaintiffs may seek injunctive relief). There are three cognizable categories of competitive injury under the RPA: primary line, secondary line, and tertiary line. Primary-line claims involve competition between sellers, such as predatory pricing. Secondary-line claims involve price discrimination that injures competition among the discriminating seller’s customers (e.g., when a supplier gives discounts to large, “favored” deals that it does not offer to “disfavored,” smaller dealers, and does not have an affirmative defense) and are the type of claim most relevant here. Tertiary-line claims involve competitive harm at the level of the customer’s customer and are relatively rare.

To establish a prima facie case of a secondary-line claim, a plaintiff must demonstrate that (1) the relevant sales were made in interstate commerce; (2) products were of “like grade and quality”; (3) the seller “discriminate[d] in price between” plaintiff and another purchaser; and (4) “‘the effect of such discrimination may be . . . to injure, destroy, or prevent competition’ to the advantage of a favored purchaser, i.e., one who ‘receive[d] the benefit of such discrimination.’” Volvo Trucks, Inc., 546 U.S. at 176 (citing 15 U.S.C. § 13(a)). 

Secondary-line claims are “fact-intensive” because they require parties to “map out in some detail the competitive terrain upon which the players do battle.” Boise Cascade Corp., 837 F.2d at 1130. However, secondary-line claims benefit from a favorable evidentiary principle—the Morton Salt inference—first articulated by the Supreme Court in FTC v. Morton Salt Co., 334 U.S. 37 (1948). Under Morton Salt, a court may infer competitive injury from “a significant price reduction” granted to a competitor “over a substantial period of time.” Volvo Trucks, 546 U.S. at 177. The inference has been criticized for being in tension with antitrust law’s primary focus on the competitive process and for its failure to distinguish between anticompetitive, coercive buyer behavior and pro-competitive, pro-consumer selective discounting.¹¹

Unlike the other U.S. antitrust statutes, the RPA creates its own structure of affirmative defenses, including (i) cost justification (e.g., “favored” customers are associated with lower costs, thereby justifying the price differential); (ii) good faith meeting of a competitor’s price (e.g., matching the equally low price offered to a favored customer by a rival); and (iii) changed circumstances (e.g., market conditions changed and the price discrimination in favor of the favored customer was in response to those changed conditions). See 15 U.S.C. §§ 13(a), (b).

Revival of interest in invoking the RPA 

After a long period of relative lack of interest in the RPA, the recent past has seen a number of developments that, taken together, suggest an increased appetite for RPA litigation:

• In December 2024 and January 2025, the first two governmental actions under the RPA in over 25 years were brought by the FTC in the final weeks of the Biden Administration.¹²
• The FTC voluntarily dismissed its case against PepsiCo under the Trump Administration in May 2025.¹³ 
• However, the FTC continues to prosecute the second case, FTC v. Southern Glazer’s Wine and Spirits, LLC, which survived a motion to dismiss in April 2025 and is currently in discovery.¹⁴ Southern Glazer’s Wine and Spirits, LLC (Southern) is the largest wholesale distributor of wine and spirits in the United States.¹⁵ The FTC alleges that due to Southern’s ability to leverage its “greater purchasing power,” Southern has “repeatedly discriminated in price between disfavored independent purchasers and favored large chain purchasers of wine and spirits” by charging significantly higher prices for identical wines and spirits to “disfavored independent retailers than to favored large chain retailers.”¹⁶ 
• All three current Republican commissioners on the FTC have publicly stated their commitment to use of the RPA, notwithstanding their policy disagreements with past actions.¹⁷ In a lengthy dissent in Southern Glazer’s, for example, Chair Ferguson noted that “limited resources” require the FTC to be “choosy” about the actions it brings to “ensure that we get the biggest bang for [the] buck.”¹⁸ Ferguson suggested that the FTC should bring secondary-line RPA claims “only when there is strong evidence that the favored purchasers possess market power,” and that “bringing cases where the favored purchasers possessed buyer market power would capture anticompetitive conduct that the other [antitrust] laws would not reach.”¹⁹ He noted that the FTC’s investigations into Southern and PepsiCo found no evidence of market power.²⁰
• On December 6, 2025, President Trump announced that combating discriminatory pricing and anticompetitive conduct in the food and beverage industry is a priority of the current Administration.²¹ In Executive Order 14364 (“Addressing Security Risks From Price Fixing and Anti-Competitive Behavior in the Food Supply Chain”), the president instructed the DOJ and the FTC, among other things, to “investigate food-related industries within their established areas of expertise and determine whether anti-competitive behavior exists in food supply chains in the United States.” The order does not refer to the RPA by name, but it calls on the attorney general and the chair of the FTC to “take such actions as are necessary to remedy any anti-competitive behavior that their respective investigations uncover, including bringing enforcement actions and proposing new regulatory approaches.”²²
• Industry groups in the pharmacy and grocery sectors have specifically pushed for increased use of the RPA, with one group noting in August 2025 that it has received indications of “conceptual buy-in” for increased RPA activity from the National Economic Council and the Trump Administration.²³ 

Finally, in December 2025, Senator Cory Booker (D-NJ) introduced the Fair Competition for Small Business Act of 2025, which would, if enacted, authorize all 50 state attorneys general to seek treble damages in civil actions for violation of the RPA as parens patriae, a move that could significantly increase incentives for use of the RPA.²⁴ 

Key battle lines in RPA litigation

As there are indications of growing bipartisan support for increased use of the RPA, many battle lines in future RPA litigation will be drawn over how courts resolve the statute’s possible tension with existing antitrust laws and policy, i.e., (i) by interpreting the RPA as a “fairness mandate” that is intended to protect competitors for their own sake (and thus treating the RPA differently from other antitrust laws), or (ii) by attempting to thread the needle and construing the RPA’s basic prohibitions and its defenses in a way that must be consistent with antitrust laws’ consumer welfare standard. Companies defending against RPA secondary-line claims—whether in litigation by private plaintiffs or in investigations or litigation pursued by the U.S. antitrust agencies—will have bases to argue that the RPA is not an exception to the antitrust laws’ general focus on consumer welfare.

The starting point is necessarily Volvo Trucks, since it is the most recent time the Supreme Court addressed the RPA. Plaintiff Reeder-Simco GMC, Inc. (Reeder), a Volvo truck dealer in Arkansas, alleged that Volvo discriminated against it by offering other dealers more favorable wholesale discounts on heavy-duty trucks. Volvo sold trucks to dealers in exclusive regions via a competitive bidding process: A customer would submit specifications for a truck and invite a bid from a dealer. To formulate its bid, the dealer would then request a price from Volvo, which Volvo assessed on a case-by-case basis. The dealer purchased the truck from Volvo only if the customer accepted the dealer’s bid. When Reeder learned that Volvo was in the process of reducing its dealer network, Reeder suspected it was receiving lower discounts than other dealers because it was a target for elimination. Reeder’s evidence included purchase-to-purchase comparisons, offer-to-purchase comparisons on lost bids, and two head-to-head bids against another Volvo dealer. A jury awarded Reeder treble damages of nearly $4 million, finding that there was a reasonable possibility Volvo’s discriminatory pricing harmed competition between Reeder and other dealers. The Eighth Circuit affirmed by a divided vote. 

The Supreme Court reversed because Reeder failed to show that it was in competition with the other truck dealers. Writing for the Court, Justice Ginsburg noted that Reeder could not satisfy the third and fourth elements of a secondary-line claim under the RPA “because Reeder ha[d] not identified any differentially priced transaction in which it was both a ‘purchaser’ under the Act and ‘in actual competition’ with a favored purchaser for the same customer.” Volvo Trucks, 546 U.S. at 177. However, in Section IV of the decision, the Court went on to address how the RPA fit into the broader policy concerns of U.S. antitrust law, noting that “[i]nterbrand competition . . . is the ‘primary concern of antitrust law,’” and that the Court “would resist” any interpretation of the RPA that was “geared more to the protection of existing competitors than to the stimulation of competition.” Volvo Trucks, 546 U.S. at 181. 

The battle lines on how parties will frame competitive-injury issues in future RPA litigation will likely be drawn around whether Section IV in Volvo Trucks is treated as dicta. The government is likely to foreground alleged mechanisms of discriminatory promotional support and price effects on non-favored retailers’ customers, focusing on traditional RPA tools for proving injury and discrimination in fact. It will argue for a narrow reading of Volvo Trucks and rely on the Morton Salt inference, which the Court did not disavow in Volvo Trucks.²⁵ 

However, defendants will have strong grounds on which to oppose such arguments, e.g., by invoking Volvo Trucks (and the Court’s related consumer-welfare jurisprudence) to insist that the government cannot state a claim for violation of the RPA without establishing that any alleged price differential threatened harm to competition generally—rather than merely disadvantaging a competitor. See Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 220 (1993) (holding in a primary-line case that the RPA “condemns price discrimination only to the extent that it threatens to injure competition” and “should be construed consistently with broader policies of the antitrust laws”). Indeed, courts have held that “the Supreme Court . . . urged lower courts to construe the [RPA] narrowly” in Volvo Trucks. Drug Mart Pharmacy Corp. v. Am. Home Prods. Corp., 2012 WL 3544771, at *8 (E.D.N.Y. Aug. 16, 2012), aff’d sub nom. Cash & Henderson Drugs, Inc. v. Johnson & Johnson, 799 F.3d 202 (2d Cir. 2015); Coal. For A Level Playing Field, L.L.C. v. AutoZone, Inc., 737 F. Supp. 2d 194, 209 (S.D.N.Y. 2010) (“[T]he Supreme [Court] has instructed that fairness goals notwithstanding, the [RPA] must be construed consistently with the [n]ation’s other, pro-competitive antitrust laws.”). 

Attempts by government or private plaintiffs to expand the scope of the RPA through the Morton Salt inference must contend with the fact that it is well established that the Morton Salt inference is “only an inference” and can be overcome by “substantial evidence of absence of competitive injury.” Boise Cascade Corp. v. F.T.C., 837 F.2d 1127, 1144 (D.C. Cir. 1988) (noting that “a sustained and substantial price discrimination raises an inference, but it manifestly does not create an irrebuttable presumption of competitive injury”); Cash & Henderson Drugs, Inc. v. Johnson & Johnson, 799 F.3d 202, 212 (2d Cir. 2015) (“[W]e do not believe the Morton Salt inference may ever be completely irrebuttable because, after all, the ultimate question is whether there has been an injury to competition.”); Feesers, Inc. v. Michael Foods, Inc., 498 F.3d 206, 213 (3d Cir. 2007) (Feesers I) (noting that the Morton Salt inference is a “rebuttable inference”); Rose Confections, Inc. v. Ambrosia Chocolate Co., a Div. of W.R. Grace & Co., 816 F.2d 381, 388 (8th Cir. 1987) (“[T]he Morton Salt inference is rebuttable.”); but see Chroma Lighting v. GTE Prods. Corp., 111 F.3d 653, 658 (9th Cir. 1997) (“We hold that in a secondary-line Robinson-Patman case, the Morton Salt inference that competitive injury to individual buyers harms competition generally may not be overcome by proof of no harm to competition.”).

Footnotes

1. See A.A. Poultry Farms, Inc. v. Rose Acre Farms, Inc., 881 F.2d 1396, 1402 (7th Cir. 1989) (Easterbrook, J.) (“If courts use the vigorous, nasty pursuit of sales as evidence of a forbidden ‘intent,’ they run the risk of penalizing the motive forces of competition.”).

2. See A. I. Gavil, Secondary Line Price Discrimination and the Fate of Morton Salt: To Save It, Let It Go, 48 Emory L.J. 1057, 1071–72 (1999) (noting that “the [RPA’s] principal drafter,” who served as counsel to the United States Wholesaler Grocer’s Association at the time, asserted that the RPA was intended “to preclude the possibility of the courts requiring a showing of effect upon general competitive conditions in addition to obvious and admitted injury to particular competitors”) (citation omitted).

3. See, e.g.,H. Hovenkamp, Written Testimony on the Robinson-Patman Act to the Antitrust Modernization Commission (July 2, 2005), at 1 (“As currently enforced the Robinson-Patman Act is a socially costly statute that produces no benefits to competition that could not be secured by means of litigation under the Sherman Act. At the same time, the statute imposes significant costs on manufacturers who depend on networks of independent dealers.”), available here; H. Hovenkamp, The Robinson-Patman Act and Competition: Unfinished Business, 68 Antitrust L.J. 125, 130 (2000) (“Very few statutes have survived such long-lived and unrelenting criticism as has been directed against the Robinson-Patman Act.”); A. Abbott & S. Marar, The Robinson-Patman Act: A Statute at Odds with Competition and Economic Welfare, Mercatus Center Policy Brief (June 2023), at 15 (“Net welfare is likely to be maximized by an outright repeal of the RPA[.]”).

4. U.S. Dep’t of Justice, Report on the Robinson-Patman Act 250 (1977), available here.

5. Brief for the United States as Amicus Curiae Supporting Petitioner, Volvo Trucks N. Am., Inc. v. Reeder-Simco GMC, Inc., No. 04-905 (May 2005), at 11 (citing and quoting Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 220, 224 (1993), in turn quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962)).

6. See Compl. ¶¶ 9−10, FTC v. Southern Glazer’s Wine and Spirits, LLC, No. 8:24-cv-02684 (C.D. Cal. Dec. 12, 2024); Compl., FTC v. PepsiCo, Inc., No. 1:25-cv-00664-JMF (S.D.N.Y. filed Jan. 17, 2025).

7. E.g., FTC Commissioner Alvaro M. Bedoya, Returning to Fairness, Prepared Remarks at the Midwest Forum on Fair Markets: What the New Antimonopoly Vision Means for Main Street, Federal Trade Commission (Sept. 22, 2022), at 8 (“Certain laws that were clearly passed under what you could call a fairness mandate—laws like Robinson-Patman—directly spell out specific legal prohibitions. Congress’s intent in those laws is clear. We should enforce them.”), available here.

8. See Letter from Sen. C. Grassley et al. to Att’y Gen. P. Bondi & Chair A. Ferguson (Jan. 20, 2026), available here.

9. See Letter from Sen. E. Warren et al. to PepsiCo, Inc. (Jan. 28, 2026), available here.

10.See also Feesers, Inc. v. Michael Foods, Inc., 591 F.3d 191 (3d Cir.) (Feesers II), cert. denied, 562 U.S. 837 (2010).

11. Notably, “after the Commission ordered Morton Salt to discontinue its discounts to purchasers of its salt, Morton Salt predictably eliminated the purchasing options that benefited small customers” by imposing a five-ton minimum purchase requirement that has been claimed to have harmed competition and consumers. See Dissenting Statement of Comm’r Melissa Holyoak, In re S. Glazer’s Wine & Spirits, LLC, No. 2110155 (F.T.C. Dec. 12, 2024), at 46−47, available here.

12. See Compl., FTC v. Southern Glazer’s Wine and Spirits, LLC, No. 8:24-cv-02684 (C.D. Cal. Dec. 12, 2024); Compl., FTC v. PepsiCo, Inc., No. 1:25-cv-00664-JMF (S.D.N.Y. filed Jan. 17, 2025).

13. FTC, Press Release, FTC Dismisses Lawsuit Against PepsiCo (May 22, 2025), available here.

14. FTC v. Southern Glazer’s Wine and Spirits, LLC, No. 8:24-cv-2684, 2025 WL 1392166 (C.D. Cal. Apr. 17, 2025).

15. Compl. ¶ 13, Southern Glazer’s.

16. Id. ¶ 32.

17. Statement of Chairman Andrew N. Ferguson, Joined by Comm’r Melissa Holyoak, Matter of Non-Alcoholic Beverages Price Discrimination Investigation, Matter No. 2210158 (F.T.C. May 22, 2025) (“[T]he Robinson-Patman Act is a valid law that the Commission is constitutionally obliged to enforce.”), available here; Concurring Statement of Comm’r Mark R. Meador, Matter of Non-Alcoholic Beverages Price Discrimination Investigation, Matter No. 2210158 (F.T.C. May 22, 2025) (“I applaud efforts to revive RPA enforcement . . . .”), available here. 

18. Dissenting Statement of Comm’r Andrew N. Ferguson, Matter of Southern Glazer’s Wine & Spirits, LLC, Matter No. 211-0155 (F.T.C. Dec. 12, 2024), at 27, available here.

19. Id. at 30 n.204.

20. Id. at 30; Andrew N. Ferguson, Dissenting Statement, In the Matter of Non‑Alcoholic Beverages Price Discrimination Investigation, No. 2210158 (Jan. 17, 2025), at 2, available here.

21. Exec. Order 14364, 90 Fed. Reg. 57349 (Dec. 6, 2025), § 2, available here.

22. Id.

23. See National Community Pharmacists Association, White House open to FTC enforcement of Robinson-Patman Act (Aug. 7, 2025) (noting that “there is conceptual buy-in from the [National Economic Council] and the White House to enforce the [RPA] through the Federal Trade Commission”), available here; Letter from National Grocers Ass’n to Chair A. Ferguson and Assistant Att’y Gen. G. Slater (urging the FTC and the DOJ “to expeditiously exercise” their authority to enforce the RPA “to address market manipulation by dominant retail power buyers”), available here.

24. Fair Competition for Small Business Act of 2025, S. 3548, 119th Cong. (2025).

25. See, e.g., Alvaro M. Bedoya, Statement, Joined by Chair Lina M. Khan and Commissioner Rebecca Kelly Slaughter, In the Matter of Southern Glazer’s Wine and Spirits, LLC, FTC File No. 211‑0155 (Dec. 12, 2024), at 21 (“Commissioner Holyoak devotes 22 pages to an attack on the Supreme Court precedent in Morton Salt and the clear legislative intent of Congress. Commissioner Holyoak argues that Robinson-Patman is not intended to protect against harm to competitors, but instead [against] general competition. This position is contrary to the plain reading of the statute, well-established case law, and the express statements of the people whom the Constitution empowers to write American law.”), available here.

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