Big trouble for big boxes? A pending challenge to promotional packaging based on size
By James F. Herbison & Kevin Wolff
April 2016
The first of two articles in this issue that discuss a case, Woodman’s Food Mkt., Inc. v. The Clorox Company, Case No. 14-CV-734-slc, 2015 WL 420296 (W.D. Wis. Feb. 2, 2015), that raised an issue of first impression in federal courts as to whether a product manufacturer’s offering of special (large pack) package sizes only to certain “club” retailers such as Costco and Sam’s Club but not to “general market” retailers constitutes a promotional service sufficient to maintain a claim for violation of the price discrimination provisions of the Robinson-Patman Act, 15 U.S.C. §§ 13(d) and 13(e). In Woodman’s, the district court held that Clorox’s offering of its large pack products only to certain retail customers was a promotional service sufficient to allow Woodman’s to state a claim under the Act. Clorox appealed and the case is awaiting decision by the Seventh Circuit Court of Appeals (Appeal No. 15-3001).
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