Woodman’s Food Market, Inc., Plaintiff-Appellee v. The Clorox Co. and The Clorox Sales Co., Defendants-Appellants

Brief of the Federal Trade Commission urging the Seventh Circuit to reverse the district court’s holding that the mere sale of large-sized packages to one merchant but not another could violate Section 2(e) of the Robinson-Patman Act. Section 2(e) forbids sellers from providing discriminatory promotional services to competing buyers for resale. Two FTC administrative decisions from 1940 and 1956 held that Section 2(e) requires a seller to provide its products in packages of the same size and style to all competing buyers who demand them. The FTC’s position is that these administrative decisions are not good law, because they are out-of-step with more recent cases adopting a narrower interpretation of the Robinson-Patman Act and holding that the Act should be interpreted consistently with other antitrust laws.