In March of this year the Antitrust Division of the US Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) jointly announced a series of “listening forums” that would help gather real world input from participants in key industry segments on possible reforms to the antitrust regulations to mergers and acquisitions.1 Co-led by DOJ Assistant Attorney General (“AAG”) Jonathan Kanter and FTC Chairperson Lina Khan, the first of the four announced forums was held on March 28, 2022 and focused on agriculture. In addition to AAG Kanter and Chairperson Khan, the program included eight panelists that provided input from the livestock, farming, and small retail perspectives.2
Reminiscent of the input received during the 2010 DOJ and US Department of Agriculture workshops on antitrust and agriculture, the speakers and (virtual) attendees raised familiar concerns to the enforcers including but not limited to consolidation in the beef, pork, and poultry packing industries, dairy production, dairy processing, and seeds market segments.3 The panelists and public participants also raised issues about buyer power and price discrimination in the retail market segment, increased pricing of agricultural input products, and false labeling issues. AAG Kanter and Chairperson Khan both expressed acknowledgment of the issues raised in the session and committed their respective agencies to look into them with a particular eye toward mergers and acquisitions that could lead to additional market concentration.
The concerns raised in this session, and the agencies’ responses to those concerns, are consistent with the Biden Administration’s renewed agriculture focus on antitrust in the sector. Following up on campaign promises, on July 9, 2021 President Biden issued his Executive Order on Promoting Competition in the American Economy, which outlined a number of actions and initiatives to address competition in the agriculture industry.4 On January 3, 2022, President Biden expanded on his Executive Order by providing additional context and support on how the antitrust laws could help invigorate the industry. The President outlined four key points that he believed would “create fairer markets and more opportunities for family farmers and ranchers and bring down the price at grocery stores,” by addressing concentration in agriculture segments as well as problems relating to false labeling of agriculture and food products. The Executive Order, the January 2022 announcement, and this listening forum all strongly suggest that the antitrust agencies are actively working toward increased in the industry in addition to enforcement addressing some of these concerns through the reforms to the horizontal merger guidelines.
Businesses in the agriculture and food sectors should also take notice of these significant signals from the Administration and make sure that their respective antitrust compliance programs, including internal audits, are up to date. In addition, perhaps now more than ever, it is important to seek early antitrust advice on competitive and strategic acquisitions within the industry. Polsinelli’s Antitrust team is ready to support its clients.
The DOJ and FTC Listening Forums continue with Healthcare, which was held on April 14, 2022, Media and Entertainment, which was held on April 27, 2022, and the final one on Technology that will be held on May 12, 2022. Click here to download the alert.
1 “Forums to focus on markets commonly impacted by mergers: food and agriculture, health care, media and entertainment, and technology,” March 17, 2022, available at: https://www.ftc.gov/news-events/news/ press-releases/2022/03/ftc-justice-department-launch-listening-forums-firsthand-effects-mergers-acquisitions
2 Full transcript of forum available at: https://www.ftc.gov/system/files/ftc_gov/pdf/FTC-DOJ%20Merger%20Guidelines%20Listening%20Forum_FTC_March%2028%202022.pdf
3 “Public Workshops: Agriculture and Antitrust Enforcement Issues In Our 21st Century Economy,” available at: https://www.justice.gov/atr/events/public-workshops-agriculture-and-antitrust-enforcement-issues-our-21st -century-economy-10
4 Exec. Order No. 14036 86 FR 36987, available at: https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/
© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume XII, Number 131