Two months ago, I wrote about Zohran Mamdani’s proposal for public grocery stores in New York City, and the challenges it would face from big-box stores that control the market. The crux of the issue, I argued, is that small grocers—whether they’re public, private, or somewhere in between—are forced to compete with massive corporations that receive price discounts from food and beverage distribution companies. Those discounts allow the Walmarts of the world to sell their goods for low prices, making it almost impossible for mom-and-pop retailers to compete while still making a profit.
One solution to this is to dissolve all small New York City grocers and bodegas in favor of Walmart, but that lack of competition would almost certainly result in higher margins for Walmart and higher overall prices for us. Fortunately, there is a law already on the books that could stop the unfair practices that give big-box stores a leg up: the Robinson-Patman Act, passed in 1936. Unfortunately, starting around 1980, both Democratic and Republican administrations stopped enforcing the law.
Under Lina Khan, President Biden’s Federal Trade Commission chair, the FTC brought two Robinson-Patman cases to court. The Trump administration has since dropped one, but the other is still being litigated.
Now, on the tailwinds of Mamdani’s election as mayor, New York state lawmakers have introduced a state version of the RPA, to enable smaller retailers to access supplier discounts. This provides a state backstop in case the federal government won’t step up to enforce the law. More importantly, there’s some promise that lawmakers in the state assembly could work with Mamdani’s administration to tackle high food prices through a combination of his public grocery proposal and the proposed antitrust law. With Khan co-chairing Mamdani’s transition team and looking for new authorities to lower prices, antitrust policy seems to be a given in New York’s future.
THE CONSUMER GROCERY PRICING FAIRNESS ACT, sponsored by state Assemblymember Micah Lasher and state Sen. Cordell Cleare, is essentially a state-sized version of the Robinson-Patman Act. If passed, it would empower New York’s attorney general to sue distributors who offer unfair discounts (as defined in the bill) to big-box stores without offering them to smaller retailers. Under the law, business owners could also bring civil suits against companies engaged in unfair practices, but Lasher said he expects the lion’s share of enforcement to come from the state attorney general.
Enforcement would be a major help to independent grocers across the state. Small grocers have been struggling to keep up with big-box stores for decades; the six biggest grocers now control 60 percent of all sales, and suppliers are heavily concentrated as well. The mutual back-scratching of these oligarchical giants leaves independent competitors out in the cold. This has accelerated—or, arguably, caused—the rise of food deserts across America, in both urban and rural areas.
New York state lawmakers have introduced a state version of the Robinson-Patman Act, to enable smaller retailers to access supplier discounts.
Anthony Peña, vice president of the National Supermarket Association and a grocery store owner himself, described the kinds of price discrimination that small-business owners see every day: “It’s hard when you’re buying Tropicana orange juice at $3.90 a unit and you have to make something [off] of it,” he said. “And then Costco is selling two of them for like, $5.”
Customers see the price differences between their independent grocer and the nearest Kroger or Walmart. At a time when 47 million Americans are food insecure, many simply can’t afford to shop at their local market, even if they’d otherwise prefer to.
“We have to sometimes work magic to compete with the national chains,” Peña said.
Without any enforcement of the Robinson-Patman Act, he said, “there’s no defense against a Goliath such as that.”
The proposed bill, particularly in conjunction with Mamdani’s leadership and Khan’s guidance, could be exactly what grocers like Peña need to level the playing field, enabling them to offer cheaper prices to customers and outmaneuver the big-box stores. Zephyr Teachout, an attorney and strong advocate for antitrust policies, certainly thinks that Khan’s involvement on Mamdani’s transition team bodes well for small grocers.
“One of the key things that [Khan] did at the FTC is treat law like law. Not downstream of the preferences of a few well-heeled economists, but actually the embodiment of public deliberation and decision,” she said.
Both Khan and Mamdani have made a practice of elevating small-business owners, who would be some of the main beneficiaries of this law. Khan held dozens of roundtables with small-business owners during her tenure as FTC chair. Mamdani shouted out “Yemeni bodega owners” in his victory speech.
THOUGH THE BILL WOULD APPLY TO ALL OF NEW YORK, not just New York City, it would be a major boost to Mamdani’s proposal for public grocery stores, which would benefit from lower supplier costs and don’t have to show the same profits as private retailers. That could eventually bring lower grocery prices. Lasher acknowledged the bill’s connections to Mamdani’s affordability-centered campaign.
“Affordability was the central topic of the New York City mayoral election, and has been an animating topic of politics nationally for some time, as it should be,” Lasher said, describing the inspiration behind the bill. “At some point over the summer, there was a bunch of discussion in various media outlets and obviously Mamdani had been talking about public grocery stores in New York. So the topic of what is driving the high cost of groceries and how to address that … was very much on my mind.”
But Lasher hopes that, if passed, the law would have a wide-ranging impact across the state, including areas where Walmart and other big-box retailers are reluctant to add stores, and where smaller substitutes are subject to price discrimination from suppliers.
“Whatever one thinks about the wisdom of his proposal, the reality is that to address both the cost of groceries and the proximate availability of groceries to New Yorkers requires a broader, more structural change than will be delivered even in the best of circumstances with a handful of public grocery stores,” he said.
Other states have tested the idea of a state-level Robinson-Patman Act, with mixed results. According to the Institute for Local Self-Reliance, eight states have some form of price discrimination law on the books. This spring, Minnesota lawmakers introduced the Consumer Grocery Pricing Fairness Act, but it remains in committee. If the legislature passes this law and New York’s attorney general seriously enforces it, New York could set an example for the nation.
As Lasher pointed out, affordability has become the driving political issue in recent elections, from city offices to the presidency. The affordability of food in particular—with seemingly unending egg price discourse, SNAP cuts, inflation, and now Mamdani’s innovative proposals—has taken center stage.
Lasher announced on September 15 that he is running for Rep. Jerrold Nadler’s congressional seat in NY-12, which includes the Upper West Side, Upper East Side, and Midtown Manhattan. Another sponsor of the bill, state Assemblymember Alex Bores, jumped into the NY-12 race just a month later.
Lasher and Bores’s focus on food costs and antitrust policy, coupled with Mamdani’s win, provides a clear signal that affordability, food deserts, and the health of small grocers are ascendant issues in our politics.
“It would be really smart of [New York Gov.] Kathy Hochul to seize this moment,” Teachout said about the politics of the bill. “This fair pricing law is really about prohibiting this bullying form of pricing that shuts out small farmers, so it shuts out the farmers upstate, and shuts out grocery stores upstate, [and] shuts out the grocers in the city. It brings together so many different strands.”
If the bill passes, it would be a major boon to small grocers like Peña, as well the bodega owners who endorsed Mamdani in the final days of his campaign. Lawsuits brought under the law would likely move slowly, but would be a major signal that the state took affordable grocery pricing seriously, which might make distributors more careful before restricting independent retailers from discounts.
In the meantime, Mamdani has other options open to him. There’s his public grocery pilot program. But he also could use the city Department of Consumer and Worker Protection’s rulemaking capacity to enforce fair grocery pricing alongside a whole host of other affordability measures, as Kiren Gopal wrote in the Prospect.
Grocers like Peña are optimistic that the political winds are shifting to support independent stores and cash-strapped consumers. He hopes this advocacy will make the value of small grocers apparent to their neighborhoods and lawmakers.
“We’re part of the community,” he said. “That’s the beauty of the independent. We can adapt to our neighborhoods extremely well.”
If the bill is passed, he says, “it’ll be a lifeline for the small independent grocers, and it’ll put us in a position where we actually have a tool to use in order to [level] the playing field.”
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