The Federal Trade Commission (FTC) voted on Thursday to dismiss allegations that PepsiCo gave “unfair pricing advantages” to a major retailer while raising prices for its competitors.
In a statement, current FTC chair (and former commissioner) Andrew Ferguson called the suit, filed on January 17 in the U.S. District Court for the Southern District of New York, “a nakedly political effort” by former President Joe Biden’s administration “pursuing little more than a hunch.”
Ferguson continued his criticism in a separate statement calling the lawsuit “an insult to the Commission’s credibility” and characterizing its dismissal as a way to “clean up the Biden-Harris FTC’s mess.”
The case argued that Pepsi engaged in “anticompetitive actions” that violated Sections 2(d) and (e) of the RPA. The complaint reported that Pepsi had favored the unnamed big box retailer with payments and allowances like advertising and promotional tools without offering the same benefits to that customer’s competitors.
In a heavily redacted statement from then-FTC chair Linda Khan, the Commission argued that Pepsi “deliberately advantaged” the unnamed retail partner by raising prices on the rest of the market.
In January, FTC commissioner Melissa Holyoak, a Republican appointed by President Biden, issued her own dissenting statement, calling the lawsuit “the worst case I have seen in my time at the Commission” citing “gaping holes in the supporting evidence.”
The FTC filed a similar price discrimination lawsuit against Souther Glazer’s Wine & Spirits (SGWS) in December. The complaint, filed in the U.S. District Court for the Central District of California, also invoked the RPA and alleged that SGWS used anticompetitive practices by charging “small, independent ‘mom and pop’ businesses” 67% more than the prices offered to “large national and regional chains.”
In April, the U.S. District Court for the Central District of California denied SGWS motion to dismiss the case.