Preferential Pricing Is Quietly Becoming Litigable Again
For most large consumer brands, preferential pricing has long been treated as a commercial reality rather than a legal risk. Big buyers receive better pricing, deeper promotional support, and bespoke services. Smaller retailers compete where they can and absorb the rest.
That assumption has held largely because the law enforcing fairness between buyers went dormant.
That dormancy is ending.
The Robinson Patman Act has not suddenly been revived by regulators. Instead, it is being rediscovered by private plaintiffs who see an opening where public enforcement stepped back.
A Case That Matters More Than Its Caption
The Giannasca v. PepsiCo lawsuit filed in August 2025 does not read like a symbolic filing. It reads like a deliberately constructed test case.
The allegation is straightforward. PepsiCo allegedly provided Walmart with pricing, promotional allowances, and retail services that were not offered to competing retailers on proportionally equal terms. The harm alleged is not abstract. Independent retailers claim they were forced to compete against a dominant buyer whose retail shelf price undercut their own wholesale cost.
That detail is doing heavy work.
Courts have historically been skeptical of price discrimination claims when the only effect is lower consumer prices. This case avoids that trap by framing the harm as structural and buyer to buyer.
Robinson Patman was designed for exactly that theory.
Why This Theory Works Where Others Fail
Most modern antitrust claims collapse under the weight of consumer welfare analysis. Plaintiffs are asked to show higher prices, reduced output, or degraded quality.
Robinson Patman asks a different question.
Was a supplier providing pricing or services to one buyer that were not available to competing buyers on proportionally equal terms?
If the answer is yes, competitive injury can be inferred from the imbalance itself.
That makes the statute uniquely attractive in markets where dominant retailers function as unavoidable gatekeepers.
Mark Poe, co-founder of Gaw | Poe LLP and one of the leading plaintiff-side practitioners of Robinson-Patman litigation whose firm secured the first RPA jury verdict in approximately twenty years put it plainly in a recent USC panel discussion:
"The RPA is unusual because it doesn't require proof of harm to competition or market power. It allows claims based on unequal treatment between two resellers of similar goods. The law doesn't demand market definition or a showing that the defendant has a dominant position"
— USC Initiative on Digital Competition, "Navigating the Robinson-Patman Act" (Aug. 2025)
That is a much lower evidentiary threshold.
The Regulatory Backdrop That Made This Possible
This litigation did not arise in isolation.
Between late 2024 and early 2025, the Federal Trade Commission attempted to reintroduce Robinson Patman enforcement, including an action against PepsiCo itself. That effort ended in May 2025 after a change in FTC leadership, with the case dismissed by a unanimous commission vote.
The dismissal was without prejudice. The underlying legal theory was not rejected by a court. It was abandoned by the agency.
Private plaintiffs have since begun advancing similar theories in contexts where agency enforcement efforts were withdrawn rather than adjudicated.
What Actually Creates Exposure for Suppliers
Not every pricing disparity creates risk. The exposure emerges when several conditions align.
- A supplier sells through both dominant national chains and smaller regional or independent retailers
- Large buyers receive materially better pricing or services that smaller buyers cannot realistically access
- The resulting retail price gaps are visible and persistent
- Smaller buyers can document that they are competing at a structural disadvantage rather than losing on efficiency
When those facts exist, Robinson Patman claims become viable regardless of consumer pricing outcomes.
The uncomfortable truth for suppliers is that many current pricing architectures were designed under the assumption that Robinson Patman was functionally obsolete.
That assumption is now being tested.
Practices That Are Drawing Renewed Scrutiny
Several common commercial arrangements are reappearing in Robinson Patman pleadings and investigations.
- Promotional allowances tied to end cap displays, advertising, or in store marketing that are only offered to large chains
- Category management or merchandising services provided without charge to favored retailers
- Volume based rebates that are technically available to all customers but practically unattainable for smaller buyers
- Informal most favored customer assurances that guarantee dominant buyers the lowest effective price
None of these practices are automatically unlawful. But once they produce measurable competitive injury between buyers, they stop being background noise and start becoming evidence.
Why Beverages Are Only the First Wave
Soft drinks and energy drinks are the most visible category because price differences are easy to observe. When a two liter bottle sells for substantially less at a big box retailer than an independent store’s wholesale cost, the disparity is obvious even to non lawyers.
But the same dynamics exist across packaged foods, alcohol distribution, household goods, and convenience retail.
Any sector where a small number of retailers control distribution volume while suppliers maintain dual channel pricing is exposed to similar claims.
Once one Robinson Patman case survives early motion practice, plaintiffs do not need creativity. They need spreadsheets.
The Broader Signal
This is not a return to mid-century antitrust ideology. It is something narrower and more tactical.
Older statutes are being used to police competitive asymmetries that modern consumer welfare analysis often overlooks. Robinson Patman does not ask whether consumers paid less last week. It asks whether competition between buyers is being distorted over time.
For suppliers, that reframes risk.
Pricing strategies that once felt commercially rational now require legal defensibility on proportional equality grounds. Promotional programs designed for scale now need to be evaluated for who is realistically excluded.
The question companies should be asking is no longer whether Robinson Patman is outdated.
It is whether their largest customer relationships would look neutral if litigated by the smallest ones.
That question is starting to matter again.
How We Can Help
Rain Intelligence tracks emerging litigation theories and early filings that signal shifts in enforcement risk. If you want to see how legacy statutes like Robinson Patman are being used in new contexts, you can book a short demo to learn more.
