[Congressional Record Volume 157, Number 10 (Tuesday, January 25, 2011)]
[Senate]
[Pages S185-S186]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KOHL (for himself, Mrs. Feinstein, Mr. Durbin, Mr. 
        Whitehouse, Ms. Klobuchar, Mr. Franken, and Mr. Wyden):
  S. 75. A bill to restore the rule that agreements between 
manufacturers and retailers, distributors, or wholesalers to set the 
minimum price below which the manufacturer's product or service cannot 
be sold violates the Sherman Act; to the Committee on the Judiciary.
  Mr. KOHL. Mr. President, I rise today to introduce legislation 
essential to consumers receiving the best prices on every product from 
electronics to clothing to groceries. My bill, the Discount Pricing 
Consumer Protection Act, will restore the nearly century old rule that 
it is illegal under antitrust law for a manufacturer to set a minimum 
price below which a retailer cannot sell the manufacturer's product, a 
practice known as ``resale price maintenance'' or ``vertical price 
fixing.'' This bill wil ensure that consumers can obtain discount 
prices at the very time they need them the most.
  In June 2007, overturning a 96-year-old precedent, a narrow 5-4 
Supreme Court majority in the Leegin case turned the Sherman Act on its 
head to overturn this basic rule of the marketplace which has served 
consumers well for nearly a century. My bill--identical to legislation 
I introduced in the last two Congresses--will correct this 
misinterpretation of antitrust law and restore the per se ban on 
vertical price fixing. My bill has been endorsed by the National 
Association of Attorneys General, 38 state attorneys general, as well 
as numerous antitrust experts, including former FTC Chairman Pitofsky 
and former FTC Commissioner Harbour, and the leading consumer groups, 
including Consumers Union, the Consumers Federation of America, and the 
American Antitrust Institute. This legislation passed the Judiciary 
Committee last year.
  The reasons for this legislation are compelling. Allowing 
manufacturers to set minimum retail prices will threaten the very 
existence of discounting and discount stores, and lead to higher prices 
for consumers. For nearly a century the rule against vertical price 
fixing permitted discounters to sell goods at the most competitive 
price. Many credit this rule with the rise of today's low price, 
discount retail giants--stores like Target, Best Buy, Walmart, and the 
internet sites Amazon and EBay, which offer consumers a wide array of 
highly desired products at discount prices.
  Ample evidence exists of the pernicious effect of allowing vertical 
price fixing. For nearly 40 years until 1975 when Congress passed the 
Consumer Goods Pricing Act, Federal law permitted States to enact so-
called ``fair trade'' laws legalizing vertical price fixing. Studies 
the Department of Justice conducted in the late 1960s indicated that 
prices were between 18-27 percent higher in the States that allowed 
vertical price fixing than the States that had not passed such ``fair 
trade'' laws, costing consumers at least $2.1 billion per year at that 
time.
  Given the tremendous economic growth in the intervening decades, the 
likely harm to consumers if vertical price fixing were permitted is 
even greater today. In his dissenting opinion in the Leegin case, 
Justice Breyer estimated that if only 10 percent of manufacturers 
engaged in vertical price fixing, the volume of commerce affected today 
would be $300 billion, translating into retail bills that would average 
$750 to $1,000 higher for the average family of four every year.
  The experience of the last three years since the Leegin decision has 
begun to confirm our fears regarding the dangers from permitting 
vertical price fixing. The Wall Street Journal has reported that more 
than 5,000 companies have implemented minimum pricing policies. A new 
business--known as ``internet monitors''--has materialized for 
companies that scour the Internet in search of retailers selling 
products at a bargain. When such bargain sellers are detected, the 
manufacturer is alerted so that they can demand the seller

[[Page S186]]

end its discounting. There have been many reports of everything from 
consumer electronics and video games to baby products and toys, rental 
cars and bicycles being subject to minimum retail pricing policies.
  Defenders of the Leegin decision argue that today's giant retailers 
such as Wal-Mart, Best Buy or Target can ``take care of themselves'' 
and have sufficient market power to fight manufacturer efforts to 
impose retail prices. Whatever the merits of that argument, I am 
particularly worried about the effect of this new rule permitting 
minimum vertical price fixing on the next generation of discount 
retailers. If new discount retailers can be prevented from selling 
products at a discount at the behest of an established retailer worried 
about the competition, we will imperil an essential element of retail 
competition so beneficial to consumers.
  In overturning the per se ban on vertical price fixing, the Supreme 
Court in Leegin announced this practice should instead be evaluated 
under what is known as the ``rule of reason.'' Under the rule of 
reason, a business practice is illegal only if it imposes an 
``unreasonable'' restraint on competition. The burden is on the party 
challenging the practice to prove in court that the anti-competitive 
effects of the practice outweigh its justifications. In the words of 
the Supreme Court, the party challenging the practice must establish 
the restraint's ``history, nature and effect.'' Whether the businesses 
involved possess market power ``is a further, significant 
consideration'' under the rule of reason.
  In short, establishing that any specific example of vertical price 
fixing violates the rule of reason is an onerous and difficult burden 
for a plaintiff in an antitrust case. Parties complaining about 
vertical price fixing are likely to be small discount stores or 
consumers with limited resources to engage in lengthy and complicated 
antitrust litigation. These plaintiffs are unlikely to possess the 
facts and complicated economic evidence necessary to make the extensive 
showing necessary to prove a case under the ``rule of reason.'' In the 
words of former FTC Commissioner Pamela Jones Harbour, applying the 
rule of reason to vertical price fixing ``is a virtual euphemism for 
per se legality.''
  Our Antitrust Subcommittee conducted two extensive hearings into the 
Leegin decision and the likely effects of abolishing the ban on 
vertical price fixing in the last two Congresses. Both former FTC 
Chairman Robert Pitofsky and former FTC Commissioner Harbour strongly 
endorsed restoring the ban on vertical price fixing. Marcy Syms, CEO of 
the Syms discount clothing stores, and a senior executive of the 
Burlington Coat Factory discount chain testified as well, both citing 
the likely dangers to the ability of discounters such as Syms to 
survive after abolition of the rule against vertical price fixing. Ms. 
Syms also stated that ``it would be very unlikely for her to bring an 
antitrust suit'' challenging vertical price fixing under the rule of 
reason because her company ``would not have the resources, knowledge or 
a strong enough position in the market place to make such action 
prudent.'' Our examination of this issue has produced compelling 
evidence for the continued necessity of a ban on vertical price fixing 
to protect discounting and low prices for consumers.
  The Discount Pricing Consumer Protection Act will accomplish this 
goal. My legislation is quite simple and direct. It would simply add 
one sentence to Section 1 of the Sherman Act--the basic provision 
addressing combinations in restraint of trade--a statement that any 
agreement with a retailer, wholesaler or distributor setting a price 
below which a product or service cannot be sold violates the law. No 
balancing or protracted legal proceedings will be necessary. Should a 
manufacturer enter into such an agreement it will unquestionably 
violate antitrust law. The uncertainty and legal impediments to 
antitrust enforcement of vertical price fixing will be replaced by 
simple and clear legal rule--a legal rule that will promote low prices 
and discount competition to the benefit of consumers every day.
  In the last few decades, millions of consumers have benefited from an 
explosion of retail competition from new large discounters in virtually 
every product, from clothing to electronics to groceries, in both ``big 
box'' stores and on the Internet. Our legislation will correct the 
Supreme Court's abrupt change to antitrust law, and will ensure that 
today's vibrant competitive retail marketplace and the savings gained 
by American consumers from discounting will not be jeopardized by the 
abolition of the ban on vertical price fixing. I urge my colleagues to 
support this bill.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 75

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Discount Pricing Consumer 
     Protection Act''.

     SEC. 2. STATEMENT OF FINDINGS AND DECLARATION OF PURPOSES.

       (a) Findings.--Congress finds the following:
       (1) From 1911 in the Dr. Miles decision until June 2007 in 
     the Leegin decision, the Supreme Court had ruled that the 
     Sherman Act forbid in all circumstances the practice of a 
     manufacturer setting a minimum price below which any 
     retailer, wholesaler or distributor could not sell the 
     manufacturer's product (the practice of ``resale price 
     maintenance'' or ``vertical price fixing'').
       (2) The rule of per se illegality forbidding resale price 
     maintenance promoted price competition and the practice of 
     discounting all to the substantial benefit of consumers and 
     the health of the economy.
       (3) Many economic studies showed that the rule against 
     resale price maintenance led to lower prices and promoted 
     consumer welfare.
       (4) Abandoning the rule against resale price maintenance 
     will likely lead to higher prices paid by consumers and 
     substantially harms the ability of discount retail stores to 
     compete. For 40 years prior to 1975, Federal law permitted 
     states to enact so-called ``fair trade'' laws allowing 
     vertical price fixing. Studies conducted by the Department of 
     Justice in the late 1960s indicated that retail prices were 
     between 18 and 27 percent higher in states that allowed 
     vertical price fixing than those that did not. Likewise, a 
     1983 study by the Bureau of Economics of the Federal Trade 
     Commission found that, in most cases, resale price 
     maintenance increased the prices of products sold.
       (5) The 5-4 decision of the Supreme Court majority in 
     Leegin incorrectly interpreted the Sherman Act and improperly 
     disregarded 96 years of antitrust law precedent in 
     overturning the per se rule against resale price maintenance.
       (b) Purposes.--The purposes of this Act are--
       (1) to correct the Supreme Court's mistaken interpretation 
     of the Sherman Act in the Leegin decision; and
       (2) to restore the rule that agreements between 
     manufacturers and retailers, distributors or wholesalers to 
     set the minimum price below which the manufacturer's product 
     or service cannot be sold violates the Sherman Act.

     SEC. 3. PROHIBITION ON VERTICAL PRICE FIXING.

       (a) Amendment to the Sherman Act.--Section 1 of the Sherman 
     Act (15 U.S.C. 1) is amended by adding after the first 
     sentence the following: ``Any contract, combination, 
     conspiracy or agreement setting a minimum price below which a 
     product or service cannot be sold by a retailer, wholesaler, 
     or distributor shall violate this Act.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall take effect 90 days after the date of enactment of this 
     Act.
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