FTC Denies Dow Chemical's Application to Modify its 2009 Consent Order Requiring Sale of Chemicals Facility in California

Following a public comment period, the Federal Trade Commission has denied an application by The Dow Chemical Company to modify the terms of a settlement it reached with the agency in 2009. The FTC’s consent order resolved the agency’s concerns about how Dow’s acquisition of Rohm and Haas Company would affect competition in the markets for acrylic acid monomers and other industrial chemicals used to make coated paper products, paints, and adhesive.

The final order settling the case includes a requirement that Dow sell its property in Torrance, California that includes a latex polymers plant. According to Dow’s application, however, Arkema Inc., the FTC-approved buyer of the acrylic acid business and the latex polymers business, did not want to buy either the plant or the land in Torrance. Instead, Arkema agreed to a long-term lease of the plant with an option to buy only the portion of the property where the plant is located. The FTC approved that lease to Arkema in 2010 and granted Dow a one-year extension to sell the remaining property.

In its current application, Dow stated that it has tried unsuccessfully to sell the whole site, as required by the FTC order, and that it has not yet obtained the municipal approval it needs to subdivide the site so it can sell the portion of the land where the latex polymers plant is located to Arkema. Accordingly, Dow requested that the FTC either modify its final order to eliminate altogether Dow’s obligation to sell the entire site, or that the FTC grant Dow a further, three-year extension of time to complete the sale of the Torrance site. The FTC has now denied both of Dow’s requests.

After reviewing the application, the FTC found that Dow failed to make the required showing that the final order should be reopened, that modifying the order would be in the public interest, or that the FTC should grant the time extension. Further, competitive risks remain if Dow retains control of the Torrance Facility, the FTC found, and there is a strong public interest in Dow’s full compliance with the terms of the final order.

The Commission vote denying Dow’s application was 5-0. (FTC File No. 081-0214, Docket No. C-4243; the staff contact is Roberta S. Baruch, Bureau of Competition, 202-326-2861; see press release on Dow’s application dated February 28, 2011.)

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