The Biden administration has launched a partnership between USDA and state attorneys general in 31 states and the District of Columbia “to enhance competition and protect consumers in food and agricultural markets, including in grocery, meat and poultry processing, and other markets.”
Areas of focus include:
“• Anticompetitive market structures and practices, as well as price gouging and other anti-consumer practices, in food, retail, meat and poultry processing, and other agriculture industries.
“• Lack of choices for consumers and producers.
“• Conflicts of interest, misuse of intellectual property, and anticompetitive barriers across the food and agriculture supply chains, such as in seed markets.”
The effort is in line with a previously announced effort to spend money—$115 million in 17 states— to increase competition in the meat packing industry.
The produce industry is not listed as a major area of concentration on these new efforts, although, as noted above, the administration includes retail, which could include mergers of supermarket chains.
These efforts, combined with the sharp criticism by Lina Khan, chair of the Federal Trade Commission (FTC), of the 2016 Albertsons-Safeway merger in a 2017 paper in the Harvard Law Review, would suggest that the administration is likely to reject the proposed Kroger-Albertsons merger.
In any event, it does indicate that the administration is shifting antitrust policy away from business efficiency and effect on consumers to actual competition, which was the original intention of antitrust legislation.
The FTC could well forbid the supermarket merger, as it did with one between Microsoft and Activision, only to see it overturned by a federal judge. The FTC has dropped its appeal.
So far the administration’s antitrust efforts have had only limited success.
The Economist writes, “Some wonder how much of Mr. Biden’s policy will outlast him if he does not win a second term, given his limited victories so far in court and the threat that some of the signature policies will be challenged there, including the ban on non-competes. Others are more optimistic. Bashing big business has become more common among populist Republicans, including a prominent presidential aspirant, Ron DeSantis, the governor of Florida.”
The Economist quotes Tim Wu of Columbia Law School: “The politics of this have changed, and no one wants to be on the other side of it.”