KANSAS CITY — While pro-business in many respects from its outset, the Trump administration‘s populist streak has emerged powerfully from time to time. Most recently, the federal government has become increasingly active in scrutinizing the power large companies hold over markets. The highest-profile investigations are focusing on the technology sector, but evidence indicates such scrutiny is spilling into the food and beverage industry.
On July 23, the U.S. Department of Justice said it is opening an antitrust review into whether Amazon.com, Inc., Apple, Inc., Facebook or Google are stifling competition. The goal, according to the D.O.J., is to assess competitive conditions in the online market and ensure consumers have access to free markets. The D.O.J. also recently approved a merger between T-Mobile and Sprint Corp. The agency reviewed the deal and brokered an agreement between the two companies requiring the divestment of assets to a third party that will maintain the competitive balance of the wireless carrier industry.
Investigations that hit closer to home include D.O.J.’s intervention in a broiler chicken antitrust case that was before the U.S. District Court for the Northern District of Illinois. A motion filed by the Justice Department said the government has launched a criminal investigation into whether the country’s leading poultry processors conspired to fix prices between 2008 and 2016. The companies named in the suit deny the allegations.
The Federal Trade Commission (F.T.C.) also is closely scrutinizing mergers and acquisitions and acting from time to time. Post Holdings, Inc., St. Louis, and TreeHouse Foods, Inc., Oak Brook, Ill., recently encountered a setback in the proposed Post acquisition of TreeHouse’s private label ready-to-eat cereal business that was announced May 2. The F.T.C. said it is reviewing the transaction, and the closing of the transaction, which was expected in the third quarter of 2019, now will be delayed beyond July, according to the companies.
Congress also is making noise about anticompetitive behavior, particularly in food and agriculture. Senator Cory Booker of New Jersey wrote an op-ed published by CNN.com on July 25 reintroducing the “Food and agribusiness merger moratorium and antitrust review act 2019.” The proposed legislation would halt mergers and acquisitions in the food and ag industry while Congress updates antitrust laws. A similar version of the legislation has been introduced in the House of Representatives.
“We must restore competition to the marketplace so our farmers and ranchers can once again have the opportunity to share in the prosperity that open, transparent and fair markets provide,” Mr. Booker wrote. “And that means that Congress must pass comprehensive legislation ensuring our antitrust laws are tailored to today’s markets, and federal agencies must once again aggressively enforce our existing antitrust laws.”
Mr. Booker’s rhetoric and the food and agriculture merger moratorium legislation appear calculated to appeal to voters in Iowa, where the presidential caucuses will be held Feb. 3, 2020. Still, if his bill’s chances of passage in such a divided Congress are small, the proposal together with a more active D.O.J. and F.T.C. is concerning. Growth has been elusive for most food and beverage companies, and M.&A. has been an important tool for companies seeking paths to sustainable growth through portfolio adjustments or greater scale. Changes in how the government defines anticompetitive behavior must be clearly articulated.