FTC v. H.J. Heinz Co.

246 F.3d 708 (2001)


Heinz (D) and Milnot Holding Corporation (Beech-Nut) entered into a merger agreement. The baby food market is dominated by three firms, Gerber Products Company (Gerber), D, and Beech-Nut. Gerber enjoys a 65 percent market share while D and Beech-Nut come in second and third, with a 17.4 percent and a 15.4 percent share respectively. Gerber's products are found in over 90 percent of all American supermarkets. D is sold in approximately 40 percent of all supermarkets. Beech-Nut is carried in 45 percent of all supermarkets. The price differentials are a few cents difference per unit. At the wholesale level D and Beech-Nut, both make lump-sum payments called 'fixed trade spending' (also known as 'slotting fees' or 'pay-to-stay' arrangements) to grocery stores to obtain shelf placement. Gerber, with its strong name recognition and brand loyalty, does not make such pay-to-stay payments. P authorized this action for a preliminary injunction under section 13(b) of the FTCA. The district court denied preliminary injunctive relief. The court concluded that it was 'more probable than not that consummation of the d/Beech-Nut merger will actually increase competition in jarred baby food in the United States.' P then filed an administrative complaint against D and Beech-Nut, charging that the proposed merger violates section 5 of the FTCA and, if consummated, would violate section 7 of the Clayton Act. P appealed.