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84 Dick. L. Rev. 625 (1979-1980)
The Legality of Backhaul Allowances under the Robinson-Patman Act: An Analysis

handle is hein.journals/dlr84 and id is 627 raw text is: The Legality of Backhaul Allowances Under The Robinson-Patman Act: An Analysis I. Introduction A serious question exists regarding the legality of backhaul al- lowances, price concessions granted to customers who transport and deliver their own goods. The dilemma was articulated in 1967' when a seller requested a Federal Trade Commission Advisory Opinion. The Commission indicated that backhaul allowances cre- ated a probable violation of Section 2(a) of the Robinson-Patman Act2 because of potential price discrimination. Accordingly, the FTC position has severely curtailed the practice of backhauling.3 The decrease in backhauling is economically undesirable be- cause it results in the waste of thousands of gallons of fuel annually.4 This waste increases gas prices and exacerbates shortages by main- taining demand at a higher than necessary level. Furthermore, prices on a multitude of other goods are driven upward because of the increased fuel costs, adding to the inflationary pressures on the United States economy.' In light of the rapid escalation of fuel prices,6 as well as the nation's recent renewed commitment to energy conservation,7 backhauling should be explicitly authorized and en- couraged by the FTC. This comment analyzes the legality of backhaul allowances under the Robinson-Patman Act. A discussion of the FTC Advisory 1. FTC Advisory Opinion 147, 16 C.F.R. § 15.147 (1980). (Originally published in 32 Fed. Reg. 14694 (1967)). See notes 9-21 and accompanying text infra. 2. 15 U.S.C. § 13(a) (1976). The Robinson-Patman Act amended the price discrimina- tion provisions of Section 2 of the Clayton Antitrust Act. 15 U.S.C. 12, 13, 14-21, 22-27 (1914) (amended 1936). Section 2(a) of the Robinson-Patman Act attempts to eliminate direct or indirect price discrimination when specified competitive injury might result. Section 2(a) was also intended to eradicate monopoly, see note 89 infra, and increase economic efficiency, see note 94 infra. 3. Butler, Federal Trade Agency's Backhaul Policy Put Down by Ford's Wage-Price Council, Traffic World, Apr. 14, 1975, at 29. 4. PRIVATE LINE, June, 1978, at 1.4. 5. Parker, What the Oil Crunch Has Done to the Outlook, FORTUNE, July 30, 1979, at 9. 6. Since April, 1979, fuel prices have risen at an annual rate of 78 percent. Franklin, Business Outlook, BUSINESS WEEK, Sept. 24, 1979, at 29. 7. Address by President Carter to the nation (July 15, 1979), as reprinted in the New York Times, July 16, 1978, at 12, col. 1.

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