FTC dismisses lawsuit against PepsiCo that was filed by Biden-era FTC

Key Points

• The Republican-controlled FTC voted to dismiss the lawsuit against PepsiCo filed by the previous commission.
• The suit alleged PepsiCo violated the Robinson-Patman Act by giving unfair price advantages to Walmart over smaller vendors.
• It was initiated by Democratic commissioners led by Lina Khan just days before the presidential transition, drawing Republican dissent.
• FTC Chair Andrew Ferguson called it a “dubious partisan stunt,” arguing staff should focus on more pressing issues.

The Republican-controlled Federal Trade Commission voted Thursday to dismiss a lawsuit against PepsiCo that the previous commission filed in the waning days of the Biden administration.

The lawsuit, filed in January, alleged that PepsiCo was giving unfair price advantages to Walmart at the expense of other vendors and consumers. The lawsuit had relied on the rarely enforced 1936 Robinson-Patman Act, which it said prohibits companies from using promotional incentive payments to favor large customers over smaller ones.

When the lawsuit was filed, Democrat Lina Khan was the FTC’s chairwoman, and she was joined in support of the lawsuit by Democratic Commissioners Rebecca Slaughter and Alvaro Bedoya. At the time, Republican Commissioners Andrew Ferguson and Melissa Holyoak dissented.

A few days after the lawsuit was filed, President Donald Trump took office and Khan resigned. Trump fired Bedoya and Slaughter in March. Bedoya and Slaughter have sued the Trump administration, saying their removal was illegal.

Ferguson, who is now the chairman of the FTC, said Thursday that the PepsiCo lawsuit was a “dubious partisan stunt” and FTC staff had more important work to do.

“The Biden-Harris FTC rushed to authorize this case just three days before President Trump’s inauguration in a nakedly political effort to commit this administration to pursuing little more than a hunch that Pepsi had violated the law,” Ferguson said in a statement.

Purchase, New York-based PepsiCo said Thursday that it was pleased with the FTC's withdrawal of the lawsuit.

“PepsiCo has always and will continue to provide all customers with fair, competitive, and non-discriminatory pricing, discounts and promotional value,” the company said in a statement.