There have been reports that the Federal Trade Commission (FTC) is leveraging the long-dormant Robinson-Patman Act as a basis for civil investigations into potential price discrimination by distributors in the alcoholic and nonalcoholic beverage industry. Those suspicions were confirmed last week when the FTC sued major wine retailer Total Wine & More in the Eastern District of Virginia, asking for an order requiring the production of documents in aid of its investigation into Southern Glazer’s Wine & Spirits.

The FTC’s petition against Total Wine seeks information “to aid its ongoing law enforcement investigation into whether [Southern Glazer’s] … (1) engaged in discriminatory practices in its sales to retailers in violation of the Robinson-Patman Act, 15 U.S.C. § 13, as amended, and/or (2) engaged in other unfair methods of competition in violation of Section 5 of the Federal Trade Commission Act, 15 U.S.C. §45.” More broadly, the FTC’s investigation seeks to determine whether Southern Glazer’s has violated the Robinson-Patman Act “by giving preferential pricing and services to certain favored, large chain retailers – such as Total Wine – that it does not provide to small independent retailers.”

The FTC’s suit demonstrates that the agency has opened at least one investigation into violations of the Robinson-Patman Act and is willing to go to court to enforce compliance with its investigatory demands. In this case, the court ordered Total Wine to “show cause why the [c]ourt should not grant the [FTC’s] [p]etition and enter an [o]rder enforcing the civil investigative demand issued to Total Wine and directing it to produce” the materials the FTC seeks. A hearing on the court’s order is set for Dec. 11.

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