Robinson-Patman Liability: Diminished But Not Dead – KJK

After decades of dormancy, the Robinson-Patman Act (RPA), returned to the forefront of antitrust enforcement in early 2025—only to stumble swiftly. The RPA is an antitrust law that, at its core, prevents price discrimination among buyers that could harm competition.  Within months of the new administration, federal courts and the Federal Trade Commission itself issued strong signals that the statute’s long-awaited comeback may already be losing steam.

Particularly, two recent developments—the dismissal of U.S. Wholesale Outlet & Distribution v. Living Essentials and the FTC’s voluntary withdrawal of its PepsiCo lawsuit—suggest that, despite former-FTC Chair Lina Khan’s policy vision, the practical and legal limitations of the RPA remain steep. The implications are clear for businesses relying on differentiated pricing and promotional programs.

Living Essentials Defeats RPA Challenge on Promotional Payments

In U.S. Wholesale Outlet & Distribution Inc. v. Living Essentials, LLC, the plaintiff, a regional distributor, alleged that Living Essentials violated Section 2(d) of the RPA by offering Costco more favorable advertising and promotional allowances. However, the court found that while promotional disparities existed, they did not amount to the kind of antitrust competitive injury necessary under the statute. The court emphasized that mere inequality in terms is not enough and put the onus on plaintiffs to show that the discrimination likely harmed competition between the favored and disfavored purchasers.

U.S. Wholesale reinforces that, even when promotional practices are uneven, RPA liability is unlikely without clear evidence of downstream competitive harm—a high bar in today’s fragmented and customized retail environment.

FTC Files and Dismisses PepsiCo Case—Its  Second RPA Suit in Decades

In January 2025, the FTC made headlines when it targeted PepsiCo for allegedly favoring larger retailers over small convenience store customers in pricing and promotional support. This marked the FTC second Robinson-Patman enforcement action in more than 20 years.

That lawsuit followed another RPA complaint filed in December 2024 against alcohol distributor Southern Glazer’s Wine and Spirits—the first such enforcement action since the early 2000s. These two filings suggested a dramatic policy shift under former-FTC Chair Lina Khan, who championed more aggressive antitrust enforcement aimed at protecting small businesses from unfair practices by dominant suppliers and retailers.

However, on May 22, 2025, the FTC abruptly dropped the PepsiCo suit. In its dismissal notice, the agency stated that it would not pursue RPA matters without solid proof and a likelihood of success. While brief, their statement underscores the regulatory caution that remains around this complex and rarely enforced statute. However, the FTC’s lawsuit against Southern Glazer’s marches on, after the court denied a motion to dismiss.

What These Developments Mean for Businesses

These outcomes—one in private litigation and one in federal enforcement—may be the high-water mark of the RPA revival. Still, companies operating in competitive distribution environments should remain vigilant.

Key Takeaways:

• Promotional support is not immune from scrutiny: Section 2(d) of the RPA remains potent in theory, but courts demand more than disparity, requiring evidence of competitive injury among buyers.
• The FTC is not going all in: Despite public rhetoric, the Commission’s decision to back away from PepsiCo suggests it will bring RPA claims only in clear-cut cases with a strong factual record.
• Risk of private and state action remains: Plaintiffs may still pursue RPA theories in private litigation, and state attorneys general may fill any perceived enforcement gaps, especially under state-level unfair trade practices laws.

How We Help Clients Stay Ahead of RPA Risk

We advise suppliers, manufacturers, and retailers on structuring pricing and promotional programs that meet business goals while reducing legal exposure. Our team:

• Conducts proactive reviews of trade spend and promotional terms;
• Designs legally compliant pricing structures and rebate programs;
• Prepares robust documentation to defend against allegations of favoritism or discrimination;
• Defends clients facing federal, state, or private RPA claims.

Whether in the courtroom or the boardroom, Robinson-Patman issues require nuanced legal analysis. The law may be old, but its risks are still real.

If you’d like to discuss your brand protection needs, contact KJK eCommerce attorneys Alex Jones (AEJ@kjk.com) or Kyle Stroup (KDS@kjk.com).