1. When Wholesale Price Differences Create Risk
Section 2(a) of the Robinson-Patman Act, codified at 15 U.S.C. § 13(a), governs certain discriminatory sales of goods. This federal law does not require uniform customer pricing.
Transactions and Competing Buyers
The analysis generally compares contemporaneous, completed sales by the same seller to different buyers of commodities of like grade and quality. At least one compared sale must satisfy the interstate-commerce requirement. Services alone generally fall outside § 2(a).
For buyer-level injury claims, confirm actual competition and compare net prices after discounts and rebates. Account labels and price differences alone do not establish liability.
2. Discounts and Promotional Support Follow Different Rules
A price rebate differs from resale advertising funding. Classification depends on purpose.
Cost Savings and Meeting Competition
Cost justification concerns manufacturing, selling, or delivery savings attributable to different methods or quantities. Larger orders may reduce freight or handling costs, but volume alone does not justify the discount amount.
A useful cost study identifies the relevant order size, delivery pattern, and expenses saved. Compare those savings with the discount rather than relying on annual purchase totals. Update the analysis when shipping arrangements or discount tiers change.
Section 2(b) also recognizes good-faith price reductions to meet a competitor’s equally low price. Preserve the competitive offer and the basis for responding. Merely wanting to beat a rival’s price is insufficient.
An antitrust compliance review should connect the claimed defense to actual records.
Advertising Allowances and Services
Sections 2(d) and 2(e) address certain promotional payments and services connected with resale. Covered benefits must reach competing customers on proportionally equal terms, which need not mean identical dollar amounts.
Customers need notice and practical access. A program usable only by large accounts may require alternatives. The cost-justification defense for price differences does not apply to discriminatory promotional allowances or services.
For promotional programs, record who received notice, which options were available, and how customers qualified. Check whether spending thresholds or required formats make participation impractical for smaller competing customers.
3. MFN Restrictions and Buyer Liability
An MFN commonly promises treatment at least as favorable as another customer receives. The review should distinguish price matching from restrictions that deny competitors comparable discounts.
Price Protection and Restrictions on Rival Offers
Check whether the clause adjusts one buyer’s price or limits offers to others. Broad matching duties can discourage discounting. Separate antitrust analysis may apply, including to service agreements outside § 2(a).
Define which products, customers, periods, and benefits the MFN compares. Check whether rebates trigger matching obligations and whether approval rights limit rival offers. A narrow clause still requires review of how it operates.
Section 2(f) prohibits knowingly inducing or receiving price discrimination prohibited by the Act. Low-price negotiations do not automatically create buyer liability. The underlying prohibited discrimination and the buyer’s knowledge matter.
Review buyer emails, discount requests, and side letters for demands that competitors receive worse terms. Separate a request for a lower price from a request to block rival access. Keep the seller’s explanations of cost savings or competing offers with the negotiation record.
The Gildan–S&S Contract Changes
In October 2026, the FTC closed its investigation of potential seller and buyer violations after Gildan and S&S amended restrictions on rival wholesalers’ pricing and discounts.
The amendment preserved pricing discretion for other wholesalers. This was an investigation resolution, not a liability judgment.
4. Contract Revisions and Supporting Records
Compare contracts with invoices, rebates, and side letters. Amendments need matching operational changes.
| Feature | Review point | Possible revision |
|---|---|---|
| Volume tiers | Documented cost savings | Support the discount amount |
| MFN protection | Limits on rival offers | Narrow scope and preserve lawful pricing discretion |
| Promotional funding | Notice and practical access | Provide proportionally equal options |
Volume tiers
- Review pointDocumented cost savings
- Possible revisionSupport the discount amount
MFN protection
- Review pointLimits on rival offers
- Possible revisionNarrow scope and preserve lawful pricing discretion
Promotional funding
- Review pointNotice and practical access
- Possible revisionProvide proportionally equal options
These revisions are not automatic safe harbors. A commercial contract review should address actual operation as well as wording.
Retain cost studies, rebate calculations, price schedules, and negotiations. Preserve existing records when a dispute or investigation arises. Contract rights under applicable state law do not displace federal antitrust obligations.
5. Frequently Asked Questions
Distribution roles and earlier sales raise additional questions.
The buyer’s actual distribution functions and the basis for compensating them matter. Calling an account a wholesaler does not itself justify preferential pricing.
A prospective revision does not automatically resolve earlier sales or private claims. Historical pricing may still require separate review.
6. Legal Review before Renewal or an FTC Response
Before renewal or an FTC response, an attorney can assess sales comparisons, defenses, buyer communications, and amendments.
For government investigations, review the request’s scope, deadlines, and record preservation. Amendments do not settle past liability.
13 Oct, 2026
