Hunton Retail Law Resource

As consumers celebrated lower avocado prices at Whole Foods during the last week in August, views were mixed regarding the FTC’s decision not to challenge the Amazon/Whole Foods merger.

On August 23, 2017, the FTC’s Bureau of Competition issued a short statement that read, in its entirety: “The FTC conducted an investigation of this proposed acquisition to determine whether it substantially lessened competition under Section 7 of the Clayton Act, or constituted an unfair method of competition under Section 5 of the FTC Act. Based on our investigation we have decided not to pursue this matter further. Of course, the FTC always has the ability to investigate anticompetitive conduct should such action be warranted.”

The FTC’s decision not to further investigate the acquisition was quickly criticized by Senator Amy Klobuchar of Minnesota, who said she was “concerned about the Federal Trade Commission’s decision not to fully review Amazon’s acquisition of Whole Foods.” She specified that “Amazon's increased access to data on consumers and their behavior, and its dominance in internet retail sales, raises questions about whether this merger harms consumers and suppresses competition.” As the Ranking Member of the Senate’s Antitrust Committee, Senator Klobuchar said she “will be calling on the FTC to provide an explanation for why they made such a quick decision regarding this merger.”

Josh Wright, a former FTC commissioner, said he was “sympathetic to the view that the U.S. antitrust agencies ought to do more in the way of substantively meaningful closing statements as frequently as possible,” and that, in his view, “those statements are most valuable when the proposed acquisition raises novel or close calls of antitrust law.” However, in his view, “[t]his deal didn’t.” His statement made sure to confirm that the emphasis added was his own.