Antitrust Law Daily Wrap Up, ANTITRUST NEWS: FTC Seeks Comment on Guides for Advertising Allowances, (Nov 28, 2012)

By William Zale, J.D.

The FTC has requested public comments on the overall costs and benefits of and the continuing need for its guides for manufacturers and wholesalers on how they can provide advertising allowances and other promotional payments and services to retailers without running afoul of the Robinson-Patman Act.

The Guides for Advertising Allowances and Other Merchandising Payments and Services are intended to help businesses comply with sections 2(d) and 2(e) of the Clayton Act, as amended by the Robinson-Patman Act (“the Act”). These sections of the Act generally require a seller to make advertising and promotional allowances or services available to all competing customers on proportionately equal terms. The guides were designed to help sellers meet these requirements by providing examples of some of the statute’s central provisions, such as the definition of “competing customers” and some of the permissible accounting means by which payments can be made proportional.

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://ftcpublic.commentworks.com/ftc/fredmeyerguides.

News: Antitrust FederalTradeCommissionNews