Pricing Under Pressure: Prepare for Enhanced Antitrust Scrutiny amid Tariff Uncertainty

In an era of increased tariff pressures, U.S. antitrust enforcers have signaled that they remain vigilant for attempts by businesses to exploit the situation through anticompetitive conduct, especially in sectors already strained by supply shocks, volatile input costs, and shifting demand patterns.

Roger Alford, Principal Deputy Assistant Attorney General at the U.S. Department of Justice’s Antitrust Division, recently emphasized the need for competition authorities to remain vigilant for signs of collusion and manipulation of dynamic pricing models, particularly as companies adjust to heightened tariff levels. He warned that the imposition of trade barriers — such as tariffs that could reduce competition from abroad — can lead to market concentration, reducing the number of active suppliers and thereby increasing the risk of coordinated pricing or supply restrictions.

A case in point is the DOJ’s recent investigation into record-high egg prices. Despite arguments that egg price inflation resulted from market factors such as avian influenza outbreaks disrupting supply, after the DOJ issued subpoenas to major egg producers to examine potential collusion, prices dropped sharply from $8 to $3 per dozen. Alford cited this as an example of the heightened risk that companies may engage in anticompetitive conduct under the cover of external pressures.

Companies in the consumer packaged goods (CPG) sector are particularly exposed to these risks. Especially when facing thin margins, concentrated supply chains, commoditized inputs, or inelastic demand, CPG firms may be perceived as being especially vulnerable to engaging in coordinated responses to external shocks, whether explicit or tacit. Jurisdictions outside the U.S. have already begun scrutinizing the pricing behavior of such companies for potentially using inflation as a pretext to coordinate higher prices. For example, the Korea Fair Trade Commission recently launched investigations into several CPG companies following claims of collusion to raise prices on confectionaries and beverages. In Australia, Prime Minister Anthony Albanese recently pledged to crack down on alleged price gouging by the country’s supermarkets if reelected.

This is not the first time regulators have taken a more aggressive posture during periods of systemic disruption. For example, during the COVID-19 pandemic, the DOJ and FTC issued joint guidance stating they were on the alert for individuals and businesses using the pandemic as “an opportunity to subvert competition or prey on vulnerable Americans.” The guidance further stated that the agencies would stand ready to “pursue civil violations of the antitrust laws, which include agreements between individuals and business to restrain competition through increased prices, lower wages, decreased output, or reduced quality as well as efforts by monopolists to use their market power to engage in exclusionary conduct,” as well as “prosecute any criminal violations of the antitrust laws, which typically involve agreements or conspiracies between individuals or businesses to fix prices or wages, rig bids, or allocate markets.”

In light of this renewed scrutiny, companies in the CPG and similar sectors should consider the following measures:

• Document the bases for pricing decisions, to create a record reflecting the independence of and any business justifications for those decisions.
• Train commercial teams to recognize and steer clear of “soft signals” of collusion, particularly in discussions of tariffs or supply shortages.
• Review pricing and supply chain practices for potential antitrust sensitivities, and engage antitrust counsel when appropriate.

If you have any questions about this publication, contact the authors or your Foley & Lardner attorney.