FTC Seeks Public Comments as Part of Its Review of Guides Advising Businesses How to Avoid Illegal Discrimination in the Provision of Promotional Allowances and Services

As part of the Federal Trade Commission’s systematic review of its rules and guides, the agency is seeking public comments on the guidance it gives manufacturers and wholesalers as to how they can provide advertising allowances and other promotional payments and services to retailers without running afoul of the Robinson-Patman Act.

The Robinson-Patman Act prohibits anticompetitive price discrimination and certain other kinds of business discrimination.  The Guides – known as the “Fred Meyer Guides” – explain how suppliers can avoid unlawful discrimination under the Act by providing their advertising allowances and other promotional allowances and services to retailers on “proportionally equal terms.”

The FTC most recently reviewed and amended the Guides in 1990.  The current version of the Guides contains 15 sections covering such topics as the definition of “competing sellers,” some acceptable ways of calculating the proportionality of allowances and services, and the circumstances in which different types of retailers might need to be given access to different types of promotional media. 

During the public comment period, which continues through January 29, 2013, the FTC is seeking input on a number of specific issues including:  1) whether there is a continuing need for the Guides; 2) whether there have been changes in the case law that should now be reflected in the Guides; 3) how, if at all, the Guides should be revised to account for new developments in  commercial practices since 1990, such as the growth of the Internet as a means of promoting products; 4) what costs and benefits the Guides provide to business; and 5) what costs and benefits the Guides ultimately have for consumers.

Public comments can be submitted in paper form or online.  Instructions for submitting comments in paper form can be found in the Federal Register notice.  Comments can be submitted electronically at:  https://www.ftc.gov/policy/public-comments.

The Commission vote approving the Federal Register notice was 5-0.  The notice will be published in the Federal Register shortly, and can be found on the FTC’s website and as a link to this press release.  (FTC File No. P123900; the staff contact is Neil W. Averitt, Bureau of Competition, 202-326-2885.)