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SLOTTING FEES: ARE FAMILY FARMERS

BATTLING TO STAY ON THE FARM

AND IN THE GROCERY STORE?

THURSDAY, SEPTEMBER 14, 2000

UNITED STATES SENATE,

COMMITTEE ON SMALL BUSINESS,

Washington, D.C.

The Committee met, pursuant to notice, at 1:10 p.m., in room

628, Dirksen Senate Office Building, the Honorable Christopher S.

Bond (Chairman of the Committee) presiding.

Present: Senators Bond, Burns and Kerry.

OPENING STATEMENT OF THE HONORABLE CHRISTOPHER S.

BOND, CHAIRMAN, COMMITTEE ON SMALL BUSINESS, AND A

UNITED STATES SENATOR FROM MISSOURI

Chairman BOND. Good afternoon. The hearing of the Small Business Committee will come to order.

I have to apologize. For those of you who are familiar with the

way the Senate works you will realize that Murphy was an optimist when he propounded Murphy’s Law. We have just had a vote

that started a few minutes ago. That is why I am late. Several

other of my colleagues are tied up in votes. We also have Floor debates and other activities going on, but I thought it was important

that we get started on this extremely significant hearing. I want

to thank everybody who has come today, witnesses and those who

came just to learn more about it.

One year ago today the Small Business Committee held its first

hearing on the use of slotting allowances by the retail industry and

the impact that that has on small manufacturers. That hearing

came about because of complaints expressed to my Ranking Member, Senator Kerry, and me from small manufacturers. I am

pleased that we have worked on this problem in a bipartisan manner.

Since that first hearing, the Committee continued investigating

this practice and, at the Committee’s request, several Government

agencies initiated efforts to take a closer look at slotting allowances

and the impact of these fees on competition.

This afternoon the Committee will continue reviewing what we

have learned about this issue within the last year, what remains

to be examined, and the steps Congress and Federal agencies

should now take, among other things, to gain a better understanding of slotting fees.

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Additionally, this hearing will address produce farmers being

compelled to pay slotting allowances and similar fees. Many small

produce farmers and the associations representing them contacted

the Committee to express their grave concern about the type of fees

contributing to the downfall of America’s small family farms.

As we will hear today, small farmers receive only a small fraction of the price consumers pay for produce. When farmers are also

required to pay up-front fees or provide free merchandise to retailers to stock their produce, it becomes significantly more difficult for

farmers to make a profit and continue to farm. We will hear today

about these types of retail practices and what they mean for small

farmers and consumers.

The Small Business Committee began looking at the issue of slotting in response to numerous complaints, as I said, received from

small businesses about what appears to be a fundamentally unfair

and perhaps unlawful retail practice which has continued to be

concealed not only from the eyes of Congress and the agencies but

from consumers and the public at large.

There are many definitions about what a slotting fee is, but most

agree that slotting fees generally take the form of up-front payments of cash or product from a manufacturer to a retailer in exchange for the retailer stocking the manufacturer’s products.

Through the Committee’s investigation hearing last year, we

learned that large-chain retailers routinely demand substantial upfront slotting payments from manufacturers to get products on the

shelf or to keep them on the shelf. We are talking about the most

expensive real estate in America.

Chain retailers often exclude the products of small businesses

simply because they cannot afford the excessive payments. Retailers frequently ignore the quality of a manufacturer’s product when

determining who gets on and who stays on the shelf. Whether a

product is available to shoppers may depend solely on how much

the manufacturer is willing to pay the retailer.

During its investigation the Committee has heard countless theories and anecdotes about what these fees are, how retailers request

the fees from manufacturers, how they are treated for tax purposes

and how these fees harm consumers through increased prices and

decreased consumer choice and innovation. In order to make informed policy decisions about this issue Congress needs to get the

full picture of what is occurring in the marketplace. To truly know

when these fees are acting as an anti-competitive force, Congress

and relevant Federal agencies must be able to compile the facts

about how much retailers collect, how the fees are negotiated, and

for what the fees are used. Acquiring this data, however, has been

almost close to impossible.

It seems that these fees are the ‘‘dirty little secret’’ in retailing.

Often nothing is in writing between the manufacturer and the retailer, and the amount of money paid in slotting fees is usually

known only to supermarkets, their brokers and distributors.

In addition, most small manufacturers have expressed considerable fear of retribution from chain retailers for valid reasons and

we have heard too many instances where someone complaining

about slotting fees has been totally excluded from the market. AnyVerDate 11-MAY-2000 08:20 Jun 11, 2001 Jkt 010199 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 E:\HEARINGS\67960 pfrm10 PsN: 67960
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body who complains about the fees publicly, even anonymously, if

they are discovered, gets dealt with.

Following the hearing last year this Committee requested the

GAO to conduct a study on the use of slotting fees and other related fees in the retail grocery industry. We asked the GAO to collect the basic information on the types of fees being charged, the

amounts, how manufacturers and retailers account for the fees,

whether the fees are the same for everyone, the manner in which

retailers demand such fees and the existence of the fees in other

retail environments. Unfortunately, the GAO, despite its best efforts, could not satisfy this request.

Now we think the Small Business Committee has been very patient and we worked with both the retail industry and food manufacturers for the last year. We tried to get the industry to disclose

data on slotting fees voluntarily. Unfortunately, these efforts have

been futile.

Committee staff has expressed that frustration by drafting possible language to require disclosure on an annual basis of these

fees. Unfortunately, the industry representatives were unable to

appear today to answer questions about it to justify the process

and we are going to be asking them some questions about it and

asking them why we should not take steps to assure that these fees

are disclosed to competitors and to consumers.

The Federal Trade Commission has been focusing on slotting

fees. They held a workshop in May to address the legal issues surrounding the practice and we appreciate the FTC’s work. The FTC

has told us they cannot address the workshop findings until a final

report has been considered by the Commission. Therefore, the staff

is not participating today. We appreciate their cooperation and interest and I have undertaken an initiative to include in the FTC’s

budget $900,000 in the Commerce, Justice, State appropriations

bill to examine the anti-competitive effects of slotting fees and possible remedies. The Committee intends to follow-up with the FTC

to make sure that the Federal Government gets a full and complete

picture and deals with any abuses they find.

One disturbing issue that arose in the workshop was the phenomenon that retailers charge up-front fees for small fruit and vegetable growers just to get their products on the shelf. The Committee had heard from other farmers about these unsavory practices.

At the hearing last year, representatives of the industry said the

reason they have to charge fees is to mitigate the risk of putting

new products on the market. Well, when you are talking about a

product like this, a tomato, or like this, an orange, there is not a

lot of risk. When I go into the supermarket to buy citrus fruit or

a tomato, I am going to buy the best looking, best quality I see on

the shelf.

You do not need a slotting fee to convince somebody that they

need to buy tomatoes. That is usually on my shopping list when I

go to the grocery store. In any event, these are not new products,

and accordingly, the Committee decided it was appropriate to hear

about why fees are requested from the produce industry and what

they mean for the small farmer.

[The prepared statement of Senator Bond follows:]

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Chairman BOND. Our first panel, and I invite them to come forward, are witnesses representing almost 90 percent of the companies and farmers in this country who supply fresh fruits and vegetables. They will address that issue.

The second panel includes the Administrator of Economic Research Service of the Department of Agriculture. The GAO will testify on the second panel about their unsuccessful efforts. And

rounding out the second panel will be a distinguished academic,

Professor Gregory Gundlach, who will speak on the status of research on slotting allowances and the evolving theories on the effect this practice has on consumers and competition, and why it is

important for the Federal Government to receive data on slotting

fees.

We begin the hearing by welcoming Thomas Stenzel, president of

United Fresh Fruit and Vegetable Association; David L. Moore,

president of the Western Growers Association; and Michael Stuart,

president of the Florida Fruit & Vegetable Association.

Welcome, gentlemen. We look forward to your testimony. We will

begin with Mr. Stenzel.

STATEMENT OF THOMAS E. STENZEL, PRESIDENT AND CEO,

UNITED FRESH FRUIT AND VEGETABLE ASSOCIATION, ALEXANDRIA, VIRGINIA

Mr. STENZEL. Good afternoon, Mr. Chairman. Thank you very

much for having us at this hearing.

United Fresh Fruit and Vegetable Association is a not-for-profit

trade association representing the producers, distributors and marketers of fresh produce in the United States, working together with

many our colleagues around the country representing regional associations and also working with our retail and food service customers. Our members range from the smallest family businesses to

the largest multinational produce growers and marketers.

I am pleased to testify today on an important issue to consumers

and to our industry and congratulate the Committee for its attention to this issue. Our industry is committed to providing Americans with a wholesome and abundant supply of fresh fruits and

vegetables at the lowest possible cost, and that goal will be paramount in my testimony.

Food retailing, distribution, processing and production are experiencing today greater change and consolidation than at anytime in

history. Companies are responding to marketplace forces to seek

greater efficiencies that better serve the ultimate consumer. Yet, at

the same time pressures to compete in this environment are sometimes leading buyers and sellers of produce to become adversaries

rather than partners and often to the detriment of consumers.

Now our industry strongly believes in a free market in which

produce suppliers and food retailers share the common goal of serving the consumer. The Perishable Agricultural Commodities Act

assures fair trading standards for fresh produce in the United

States. And we are ever vigilant in seeing that the Department of

Agriculture enforces this extremely effective law. Yet, congressional

oversight is needed in today’s rapidly changing marketplace. The

Federal Trade Commission, the Department of Justice, and the

U.S. Department of Agriculture all have an obligation to underVerDate 11-MAY-2000 08:20 Jun 11, 2001 Jkt 010199 PO 00000 Frm 00011 Fmt 6633 Sfmt 6602 E:\HEARINGS\67960 pfrm10 PsN: 67960
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stand the changing business dynamics in the food delivery system

and to ensure that marketplace trade practices do not become marketplace abuses of power.

In recent years, a number of trade practices more familiar in the

dry grocery area have become familiar to produce companies. Beginning within the last decade and the growth of packaged salads

in the produce department, we have often seen requests for slotting

fees and similar payments in order to do business.

Now perhaps we were naive not to anticipate this, but many

produce growers simply had no experience with packaged foods and

were taken aback. It just somehow did not seem fair to have to buy

shelf space rather than simply offer your best price and the best

quality and let the chips fall where they may.

We are not so naive today, and our larger challenge is the seemingly growing appetite for side deals, slotting fees, rebates, allowances, promotional fees, and all sorts of charges ranging from warehouse construction to store remodeling that are not contained in

contracts, do not appear on invoices, and are otherwise unaccounted for in transactions.

As this Committee and the Federal agencies involved evaluate

the topic of slotting fees, I urge you to look with broad perspective

at the impact of all of these types of off-invoice fees and not be constrained by a more narrow definition of slotting.

Our industry’s concern about slotting fees and these off-invoice

payments is based on several factors. First, we believe that consumer choice and access to produce will be reduced. Let me emphasize that I do not just refer to the up-front slotting fees. Today,

produce companies are being asked by some retailers, not all, to

pay numerous off-invoice fees unrelated to the actual product costs.

These rebates and allowances are sometimes tied to promotions or

advertising which can serve consumers and growers alike. But in

many cases they are more likely to be unrelated to any particular

incentives or performance. Because of its charter, this Committee

will naturally be concerned that small- to medium-sized growers

are particularly vulnerable to these demands, but even the very

largest produce companies are concerned about these practices.

Certainly we are concerned about fairness to our industry, but in

some cases these fees paid in advance can leave a retailer with

very little incentive to move more produce volume if their profit is

tied to buying the produce rather than selling it to you as a consumer. That raises serious questions about public health as well,

as government authorities tell us the simple step of eating at least

five servings of fruits and vegetables a day is critical in preventing

cancer, heart disease and other chronic diseases. The soaring cost

to public health of artificially high-priced fresh fruits and vegetables should be a serious national concern.

Let me address the issue of transparency in how these trading

practices work. Mr. Chairman, you are to be commended for helping to bring these issues out of the closet. The bright lights of this

hearing room are having their effect. I am pleased to say that

through your efforts, the reviews by the Federal Trade Commission

are having some beneficial effects in the industry. We hear from

our members that perhaps there is some dampening of the most

egregious abuses that we have heard reported.

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To that point, transparency and knowledge of industry practices

will help everyone in produce marketing whether they are a grower

or a retailer. In this mysterious world of off-invoice fees, suspicion

grows and trust cannot flourish. Competitors battle ghosts rather

than respond to true economic incentives. Many times we have

found retail buyers who ask for fees simply because they are afraid

their competitor is and they do not know what is being done anymore than the growers do.

Our organization does not believe this is simply a battle between

produce buyers and sellers, but is rather a wake-up call for the entire fresh food production chain to better understand the cost and

the values of delivering produce to American consumers. Basic

business economics will prevail in an environment in which these

transactions are not cloaked in mystery, but are negotiated openly,

displayed on invoices, with specific performance requirements.

Finally, let me mention a slightly different concern. Traditional

antitrust concerns have focused on regulating manufacturers’ behavior to ensure fair competition, rather than focusing on the powerful buying groups. Frankly, we are concerned today that produce

growers may be at greater risk than their customers who demand

some of these payments. There is great dissension within the retail

supermarket industry today. Many independent grocers feel that

they may not be offered the same deals as some other chains get

and they are madder than heck and say they are not going to take

it anymore either.

Under the Robinson-Patman Act, sellers of products are required

to offer the same terms to all competitive customers. When one retailer demands a special up-front deal to do business, a grower is

placed in a difficult position. What from one side looks like a demanded concession may look like ‘‘special terms’’ to competing customers in a given market. As an observer of the stresses in food

retailing today I see a real risk that grocers who imagine they are

not getting the same deal as other retailers may be more likely to

take action against the growers under these antitrust laws.

In addition, as produce suppliers begin to adapt to the marketplace size of their retail customers, we again face the risk of litigation if we even discuss slotting practices among suppliers. Let me

say that my association and our industry fully comply with antitrust laws regarding pricing. But we also believe that many of the

demands currently made in the marketplace should not be considered part of price negotiations, as they are off-invoice matters unrelated to the sale of any lot of produce. In these cases, we believe

Congress and the regulatory agencies should specifically recognize

and protect the ability of produce suppliers to discuss such practices openly, without regard to antitrust concerns about price setting.

I would call your attention to one exhibit here today, the example

on the chart to my right of a request for a warehouse stocking

charge. In this case produce suppliers fear even talking about

whether they would agree to pay such a demand. And yet, this is

clearly a case in which we believe that suppliers should be able to

simply look at that demand; say it does not make sense; we do not

want to pay it. Under antitrust laws we have great fear about retVerDate 11-MAY-2000 08:20 Jun 11, 2001 Jkt 010199 PO 00000 Frm 00013 Fmt 6633 Sfmt 6602 E:\HEARINGS\67960 pfrm10 PsN: 67960
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ribution in terms of price setting from suppliers discussing whether

to pay these fees.

[The chart follows:]

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In conclusion, today many growers are concerned with what they

see in the marketplace. We recognize that many of the changes are

going to require new ways of doing business, and that is true both

for produce growers and our retail customers. We believe in effective free market solutions for both buyers and sellers to serve the

ultimate consumer. But to find those solutions we think the changing nature of our food system must be addressed by all parties

openly and constructively.

We appreciate the Committee’s commitment to this process.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Stenzel follows:]

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Chairman BOND. Thank you very much, Mr. Stenzel.

Mr. Moore.

STATEMENT OF DAVID MOORE, PRESIDENT, WESTERN

GROWERS ASSOCIATION, NEWPORT BEACH, CALIFORNIA

Mr. MOORE. Good afternoon, Mr. Chairman. My name is David

Moore and I am a farmer and shipper of fresh produce in Bakersfield, California. I also serve as president of the Western Growers

Association whose 3,500 members grow, pack and ship fresh fruits,

vegetables and nuts in Arizona and California.

WGA appreciates the opportunity to testify before the Senate

Committee on Small Business regarding the impacts of slotting

fees and retail consolidation in the fresh produce industry. Today,

small, medium and large farmers are battling like never before to

remain economically viable. The proliferation of slotting fees and

other anti-competitive business practices by the large supermarkets

is a very real threat to family farmers. Congress and the Administration must take action to address this issue.

As retail consolidation continues, growers are seeing the use of

slotting fees and other anti-competitive business practices expand.

This is strong evidence which indicates that retail consolidation

has gone too far.

It is important to note that retail consolidation in the fresh

produce industry is producing anti-competitive practices which go

beyond the use of traditional slotting fees. Over the past few years

our growers have confronted the following practices or fees imposed

by retailers: pay-to-play, pay-to-stay, these fees are appropriately

named; rejection without reasonable cause of perishable commodities and violations of the Perishable Agricultural Commodities Act;

computer/technology-related fee charges; off-invoice demands; advertising or promotional allowances; slotting fees; interview fees;

category management fees; warehouse construction/new store opening fees; and indemnification and hold harmless agreements.

As an example, one retailer in California known as Ralphs/Food

4 Less Warehouse Stores demanded of grower/shipper suppliers a

‘‘new distributing facility opening fee.’’ This effectively required

monetary payment either in free product or direct payment to help

underwrite the cost of construction of a new warehouse that was

constructed to benefit the efficiency of the retailer. There is an all

too subtle message that a refusal to pay-to-play or refusal to payto-stay can be the difference between the ability to sell or not sell

to a particular retailer. I know of no other industry that is required

to provide working capital for a customer’s new distribution facility.

Another example, multiple large retailers have demanded food

safety audits of grower/shipper farming operations by a third party

auditor. The recommendation requires the utilization of a specific

auditor recommended by the retailer and also the dissemination of

one’s information on a web site which incurs significant expenses

for the grower/shipper. This demand allows for no reimbursement

for the cost of this extra expense of validating practices that may

have already been documented by the grower/shipper’s own internal farming and good agricultural practices.

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In another example, a prominent member has articulated that

his business was ‘‘encouraged’’ by a dominant retailer to contribute

$30,000 under the guise of a promotional allowance for a small ad

for the commodity he was selling. The shipper was not assured that

additional product would be purchased or that any long-term relationship would be maintained or that any priority for that shipper

would be provided in supplying product to the retailer.

Most recently, our grower/shippers have been encouraged by one

major retailer to prepare for participation in a new e-commerce

venture for selling and buying perishable commodities. While these

technological advancements which facilitate the communication,

transmission of an entire transaction via computer will be beneficial to all in the distribution chain, in this case the fee assessed

for each individual transaction, rather than being cost-shared by

all parties involved, will be a grower/shipper obligation exclusively.

Finally, a retailer recently assessed a fee to help ‘‘support’’ the

opening of a new warehouse facility. I am told that a supplier was

assessed $2,000 per stock keeping unit which, depending on the

number of produce items you may sell, can be tens of thousands

of dollars that are unilaterally being deducted from the remittance

by the retailer. Clearly, a unilateral institution of fees by the retailer constitutes a direct violation of the Perishable Agricultural

Commodities Act (PACA).

Another disturbing practice our members are experiencing is the

rejection, without reasonable cause of perishable commodities.

Large retailers are rejecting produce and are arbitrarily refusing to

comply with the terms of the contracts without giving any reason

or opportunity for inspection. They just do not want it. This also

is a flagrant violation of the PACA, and is a prime example of the

dark side of excess retail consolidation in our industry.

These are just a few examples of the many types of off-invoice

demands and other arrangements which have not traditionally

been a part of the produce industry. In short, the balance of power

between supplier and retailer has shifted dramatically in favor of

the large chain supermarkets over the growers. The high degree of

retail consolidation is providing the large retailers with the market

muscle needed to squeeze small growers through anti-competitive

practices.

Historically, the consumer would benefit from a surplus of a

given fruit or vegetable commodity through lower prices. Today,

however, declines in prices paid to growers are not being passed on

to the consumer.

WGA maintains a web site (www.wga.com) which reports the

price spread between the price paid to the grower and retail price

charged to consumers. We have seen price spreads of 400 percent

to 1000 percent and even higher for commodities such as iceberg

lettuce, naval oranges, cauliflower. And if you will notice the chart

over here, we handle probably 24 different items we have at all

times on our web site but in the interest of time and clarity we just

brought these three examples here. But you can see the spreads.

[The chart follows:]

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I might just highlight the fact that we have had a disastrous

year in the naval orange business because of overproduction and

other things, which is our fault, no one else’s but the price has not

declined. It is a higher price this year than last year when the retailers were paying a much higher price to the shippers.

In many instances, wholesale prices have dropped without any

corresponding decrease in the retail price. This is strong evidence

that consumers are being adversely impacted when large retailers

have the market power to keep prices high when wholesale prices

paid to growers are declining. It is important to note that the price

spreads of 400 percent to 1000 percent between shipper and retailer do not include any additional payments by the growers to retailers in the form of slotting fees, rebates, promotional allowances

or other off-invoice fees.

Unchecked retail consolidation is also adversely impacting family

farmers. The overriding trend is that growers are seeing strong

downward pressure on wholesale prices and operating margins,

while facing slotting fees and other new off-invoice payments. In

essence, the small farmer is being squeezed by retailers who are

getting larger and larger through consolidation, becoming totally

dominant in their market.

The downward price pressure is felt most acutely by the smallest

growers. Should this unhealthy trend continue, it will be difficult

for many U.S. fruit and vegetable growers to maintain economic viability in markets dominated by large retail chain stores.

WGA believes that the adverse impacts of the unchecked retail

consolidation on both growers and consumers demands serious and

urgent attention by the Federal Government. To date, we have not

seen an adequate response from the Federal Government on this

urgent matter. WGA urges the appropriate Federal agencies to

vigilantly enforce Federal antitrust laws to maintain healthy competition and prevent anti-competitive practices in our industry.

If the use of slotting fees and other off-invoice payments falls

into a gray area of antitrust law, then Congress should amend the

law to provide regulators with guidance in the area. The FTC

should examine the feasibility of developing specific guidance to

provide the foundation for acceptable or unacceptable demands by

retailers.

Possibly the best way to promote vibrant and healthy competition in the fresh produce market is to prevent further retail consolidation in our industry. Another suggestion is to require the

disclosure of slotting fees and off-invoice payments in the retailer’s consolidated financial statements, such as the company’s

Form 10-K.

In closing, WGA believes that slotting fee practices and other

anti-competitive practices are a serious problem that demands further congressional attention.

I thank you very much, Mr. Chairman.

[The prepared statement of Mr. Moore follows:]

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Chairman BOND. Thank you very much, Mr. Moore.

Mr. Stuart.

STATEMENT OF MICHAEL J. STUART, PRESIDENT, FLORIDA

FRUIT & VEGETABLE ASSOCIATION, ORLANDO, FLORIDA

Mr. STUART. Thank you very much, Mr. Chairman, and good

afternoon. Florida Fruit & Vegetable Association is a grower organization that represents producers of fresh vegetables, citrus, tropical fruit and a variety of other commodities. Our members range

in size from single-commodity growers of less than 100 acres to

larger, highly diverse grower/shippers. A large portion of our membership is indeed family-based.

While the subject of today’s hearing is obviously slotting fees, I

think it is important to touch briefly on what we believe is really

the root cause of all of this, and that is consolidation of the retail

industry. According to The Food Institute Report, the five largest

food retailers in the United States accounted for a whopping 40

percent of industry-wide sales of $271 billion in 1998 compared to

5 years earlier when it took the top 20 companies to reach the

same percentage.

As supermarket chains in the United States become fewer and

larger, these retail giants enjoy a considerable bargaining advantage over their suppliers. This is especially alarming for fresh fruit

and vegetable growers, many of whom are, in fact, small- to medium-sized family businesses. As buying power concentrates within

the retail grocery industry, fresh produce growers have fewer customers to whom they can sell their products. The net result is continued pressure to reduce prices paid to growers.

Unfortunately, consumers rarely see the benefit of these lower

prices at the supermarket. For the past several years, the Florida

Department of Agriculture and Consumer Services has conducted

weekly surveys of average farm and food retail prices and major

metropolitan areas around the State. The data generated by these

surveys often show a wide disparity and a general lack of relationship between farm and retail prices for selected fruits and vegetables. When this happens, consumers get no relief at the marketplace and growers see no increased sales of their products.

In our opinion, it is not likely that U.S. consumers will ever benefit from the continued consolidation of food retailers in this country if consumers’ experience in the United Kingdom is any indication. A 1998 study by the Office of Fair Trading in Great Britain,

a country now dominated by four grocery retail chains, suggests

that British retailers are increasingly able to retain the greater

profits from their increased bargaining power rather than passing

them onto consumers.

A November 17, 1998 article in Britain’s International Express

estimated that the average family in Britain pays over 1,000

pounds more a year for food than those on the European continent.

That brings us to the issue of slotting fees which is obviously the

subject of today’s hearing. In addition to these heightened pricing

pressures, fruit and vegetable growers and shippers are increasingly being asked to provide payments such as up-front fees, allowances or rebates to retailers, ostensibly to support the marketing

costs of the growers’ crops. In reality, however, growers tell us that

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these pay-to-play or pay-to-stay payments rarely result in any visible benefits and may only serve to boost the profit margins for retailers. Many of these requests for payments come in the form of

per package rebates that have no relation to product performance.

One request by a large retailer, it has been mentioned here a

couple of times today, involved a per package contribution in order

to fund the construction of its new produce distribution facility. So

in addition to growers having to finance their own operations, they

are also being asked to make direct payments to pay for capital improvements for the customers.

I think we all realize that slotting fees have been a mainstay in

the dry goods section of retail supermarkets for many years. We

would argue, however, that slotting fees have absolutely no place

in the produce department of a supermarket. The highly perishable

and seasonal nature of our industry makes that completely impractical. Because fruits and vegetables are priced-based on supply and

demand forces, these are costs that cannot be passed along in the

marketplace. The bottom line is that growers cannot recover the

costs of these fees. Ultimately, the cost of this pay-to-play practice

comes from growers’ profit margins, which in today’s environment

are very slim and in some cases nonexistent.

In addition to slotting fees consolidation has resulted in other

trade practices affecting growers. In recent years, retail buyers

have put increasing pressure on growers to agree to terms outside

regulations under the Perishable Agricultural Commodities Act.

The net impact of this for a grower is not only the loss of the use

of his money, but also the potential loss of his rights under the

trust provisions of the law. In order to keep business, growers also

report that they more frequently have to accept take-it-or-leave-it

price adjustments on product after delivery, even though there are

no defects that would warrant such a reduction.

Again, these are just but a few of the marketplace issues and

trading practices that growers are facing in the marketplace. Believe me when I tell you that the scope and variety of these fees

are only limited by the creativity of those requesting them.

Again, Mr. Chairman, we greatly appreciate your time, the Committee’s time, and your staff ’s time in investigating this issue and

we look forward to your questions.

[The prepared statement of Mr. Stuart follows:]

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Chairman BOND. Thank you very much, gentlemen.

In both your written and oral statements, several of you touched

on the problem with getting farmers to come forward and testify

even anonymously about the charging of slotting fees. Why are

your members so reluctant to talk publicly about the issue?

Mr. Stenzel.

Mr. STENZEL. It is a very difficult issue, Mr. Chairman. Clearly,

these are buyers and sellers in the marketplace. When our members have a relationship with a particular retail customer the last

thing they want to do is call that customer out, if you will, and talk

about what is an extremely controversial subject. I think it is very

clear to everyone in the room and certainly to the Committee that

the retail industry is not here to defend these practices. I think

that is part of the problem, that this has been that ‘‘dirty little secret’’ that you talked about in your introduction.

The more we can do to bring this area out into the light, let us

talk about these fees and if they can be justified, if they help the

consumer, then fine. But let us have it discussed and transparent

and not cloak it in the hidden area between just that business relationship where one party is in such a weaker position.

Chairman BOND. We found in our hearing a year ago that out

of some 80-plus people we talked to only 6 of them agreed to testify, 3 of those backed out. Two of them actually came with hoods

on and disguised voices. Frankly, we had to go to great lengths to

get them. This year we found that the fears were even greater. Mr.

Moore, how does it look from your standpoint?

Mr. MOORE. Yes, we have had some cases where people have

challenged the retailer—not only do they lose the business, they

will never be able to do anymore business with that retailer. They

have a way of going out and warning the others, ‘‘Are you going

to do business with that . . .’’ and I will use the term, ‘‘. . . SOB?’’

We have actually had people cut out of the market—not only the

one that he is maybe addressing, having a problem with, or has

challenged some of their practices, but as a result of their complaints, they have been driven out of business.

Chairman BOND. Mr. Stuart, I might add another question here.

During the investigation the Committee heard arguments that fees

charged to growers whether variable or fixed really are passed

along to consumers in the form of lower prices and that they do

benefit growers. Have you any information on whether price decreases have been associated with fees paid by growers and do your

members see any benefit for them in these up-front fees?

Mr. STUART. Mr. Chairman, quite the opposite. If I had to list all

of the calls I get on a weekly or a monthly basis from my members,

this particular issue ranks head and shoulders above any other in

terms of an issue that brings more—the most emotion to the table

in terms of marketplace practices. The reason they are calling is

because they see no value in the marketplace. They see, as these

charts exemplify, over the last few years the returns back to the

grower, back to the farm being reduced, and becoming tighter to

the point where you have got a lot of red ink on the balance sheet,

yet they see this disparity between the farm price and the retail

price seem to grow on an annual basis.

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So no, I do not see that there is any benefit whatsoever back to

the grower at this point in time. I see no evidence whatsoever that

there is any benefit to the consumer, certainly not if you look at

some of these markups and see what the retailers are charging for

some of these products in various cities around the country.

Chairman BOND. Mr. Moore, you testified that besides being

president of the Western Growers, you are also a produce farmer.

Have you experienced personally any of these demands for fees?

Mr. MOORE. Yes, I have, Mr. Chairman, and a lot of time if it

is not directly, it will be because sometimes I am forced to send my

product through another larger shipping organization. It gets

passed through to growers so naturally those fees have to be paid

by someone. So I am affected on the products that I grow.

Chairman BOND. Are any of you finding that these fees are

charged only in connection with exotic produce such as star fruit,

or are they charged across the board for the basics that we all get

in the produce department?

Mr. MOORE. I will use some examples. We truly understand why

the retailers—are renting space. If they have a product come in,

they do not know if it is going to move. A few years ago we had

a product called broccoli flower. Well, when it first hit the market,

they did not know if it was going to move or not. We understand

why you might have to do something to encourage the retailer to

have that space used for that. Items such as that or when these,

what we call value-added products, the lettuce mixes and all that,

when they first started they were not moving out rapidly. So we

understand why you have to do something to get your product on

the shelf.

But again, the perfect example you made when this hearing

started, what is new about a cantaloupe, an orange, a potato, or

a head of lettuce? I mean that is the part that bothers me. These

are pretty standard and we know that they are going to move and

why isn’t the 400 percent to 800 percent markup enough without

having to go to these other measures?

Chairman BOND. Mr. Stenzel, BATF has prohibited the payment

of slotting fees in relation to marketing of alcohol on the grounds

that the fees do not promote competition or benefit consumers. Now

we understand there are special policy considerations surrounding

the sale of alcohol, giving BATF the authority but is there any reason why the similar rationale should not apply in produce?

Mr. STENZEL. Mr. Chairman, I think one of the most important

things that this Committee has been able to do with your leadership thus far is to work with the Federal Trade Commission to

really get the Bureau of Competition energized. We salute what

you have done with adding the $900,000 in their budget for this

particular issue. They have got to look at that. They have got to

look seriously at what type of regulation might be appropriate in

this whole area of slotting fees for perishable products where they

are clearly not appropriate.

I think it is important that the FTC looks at guidance to the industry. That may be certainly an outcome of the hearings, the 2-

day hearings that the FTC held earlier. I think they have got to

look at transparency. Again, I am going to come back to that as I

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think the light of day shines an awfully big spotlight, and that may

be our ultimate best solution.

Chairman BOND. Do any of you know of any instance where

there is disclosure to any of the ultimate consumers of your

produce? Do consumers have any idea about the payment of fees

going on to get that produce on the market?

Mr. STUART. No evidence of that whatsoever that I have seen.

Mr. MOORE. None whatsoever.

Chairman BOND. Mr. Stenzel.

Mr. STENZEL. No, and in fact, Mr. Chairman, we do not find it

in terms of disclosure and financial accounting within the retail supermarket industry. I think that is one of the concerns, as economic theory might hold that some of these payments, particularly

if they are variable payments or volume-based would be passed on

to the consumer. But that is making the supposition that they are

used to reduce the cost of goods sold.

Clearly, in many of these cases these payments are accounted for

and there is no relationship to reducing the cost of goods sold to

the consumer. So not only are they not disclosed to the consumer

generally, they are not disclosed in accounting particularly at the

retail level.

Chairman BOND. If they are not disclosed, that is something our

friends at the IRS might be interested in. That is another problem.

In the slotting hearing in 1999, we heard instances of special payments which included things like hiring babysitters and buying

cars that probably did not show up in anybody’s 1099 or their 1040.

We have been joined by my colleague from Montana, Senator

Burns. Would you have any questions? Is there anything that you

would like to put in at this point?

OPENING STATEMENT OF THE HONORABLE CONRAD BURNS,

A UNITED STATES SENATOR FROM MONTANA

Senator BURNS. Thank you, Mr. Chairman, and thanks for this

hearing. I did not know you started at 1 o’clock. I thought it was

1:30 and here I come along, I am consequently a little late and I

want to apologize for that.

These slotting fees and selling shelf space, I understand that

Safeway is not buying any domestic lamb now, they only want New

Zealand Lamb and things like that, strike the fear of the heart of

all of us who represent the agricultural community. We do not

know how to break this practice to be honest with you.

Things are not good on the farm. We are selling wheat now for

less than we did before World War II. We are not getting along

very well out there, but yet our cost of pickups and equipment and

everything else keeps going up and we are really in a bind. And

we do not see one son of a gun in this country who gives a damn,

not one, not a packer or a processor or purveyor or a grocery store

trying to keep our people, producers, in business. Not one.

I think we are at the end of things. I have said what has been

wrong with agriculture for a long time, we cannot get enough of the

consumer dollar back to the farmer or ranch. But as long as this

country has its belly full, consumers will not, they are not going

to care. Do you realize right now if I could gather up enough money

to invest in an oil well on a speculative basis or a gas well, do you

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know how long it would take to put together a drilling crew? Fortyfive days.

Our ability to look for, discover and lift petroleum from this

earth, that infrastructure has been decimated because all of those

roughneckers went to work somewhere else. The same thing is

going to happen in agriculture. It will happen because we cannot

take these low prices. And we have got very few people to replace

now. We have got a lot of people who think they can farm but they

will find out how hard it is, you know. They do not pass along the

consumer dollar and it is a bad situation.

We have had a lot of mergers at the processing level. That means

that in livestock you have got three packers killing 85 percent of

the cattle. We do not take it far enough as far as antitrust and who

holds the key, who has got their hand around the sack. I am here

to tell you that we have a crisis in American agriculture right now.

It is a crisis. And this slotting business and this selling of shelf

space is killing us. You can have the best product in the world and

it won’t get sold. I just brought this along because we had a little

lunch today.

How come you started at 1 o’clock anyway?

Chairman BOND. The staff, they did not want me to stay there

for that blueberry cobbler.

Senator BURNS. I brought you some jam.

Chairman BOND. I wanted the cobbler.

Senator BURNS. I will go back and get you the cobbler.

Chairman BOND. That is a deal.

Senator BURNS. But this is what we are talking about. This is

the thing, what we are talking about. I can have a mediocre product, which might not be worth anything but if I have a big checkbook, I can get shelf space, not because of the product, because of

the checkbook. And that worries me, that really worries me. So as

far as questions go, I do not have any. I want to put my statement

in the Record.

Chairman BOND. Without objection.

[The prepared statement of Senator Burns follows:]

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Senator BURNS. And I think as we see this thing unfold and take

a look at it next year, I think there are several of us that will have

a lot of ideas about how we will get more dollars back to the man

on the land because he is hurting.

I went to a funeral of an old cowboy friend of mine. He was 100

percent cowboy, 76 years old. He went out, stepped on his horse in

the latter part of August, and the old horse kind of got a cold back.

He bucked a little bit, and threw him off. My good friend’s head

hit a fence post and now he is in the ground. But he went in the

ground happy and I think in agriculture he is probably in the best

place right now. I really do.

But, we have got some real problems and we are going to have

to come up with some people who care. And I have not seen those

people surface yet.

Thank you, Mr. Chairman.

Chairman BOND. Thank you very much, Senator Burns. Obviously, the Senator from Montana is one who does.

Gentlemen, we appreciate very much your testimony. We are delighted to have you here. We will leave the Record open for further

questions and if any of the Members who are tied up in other meetings have questions, we will submit those for the Record and ask

you at your earliest convenience to respond. If any of you have any

further comments based on what goes on here today, the Record

will be open for 2 weeks. Anything else you want to add, Senator

Burns?

Senator BURNS. No.

Chairman BOND. Thank you again, gentlemen.

Mr. MOORE. Thank you, Chairman.

Mr. STENZEL. Thank you, Mr. Chairman.

Chairman BOND. Our second panel is comprised of Lawrence

Dyckman, Director, Food and Agriculture Issues, Resources, Community, and Economic Development Division of the U.S. General

Accounting Office; accompanied by Andrea Brown, Assistant Director, Food and Agriculture Issues, Resources, Community, and Economic Development Division of the U.S. General Accounting Office;

Susan Offutt, Administrator of the Economic Research Service of

the U.S. Department of Agriculture in Washington; and Professor

Gregory Gundlach, College of Business Administration, University

of Notre Dame in Notre Dame, Indiana. Thank you very much for

joining us.

Mr. Dyckman.

STATEMENT OF LAWRENCE J. DYCKMAN, DIRECTOR, FOOD

AND AGRICULTURE ISSUES, RESOURCES, COMMUNITY, AND

ECONOMIC DEVELOPMENT DIVISION, U.S. GENERAL ACCOUNTING OFFICE, WASHINGTON, D.C.; ACCOMPANIED BY

ANDREA BROWN, ASSISTANT DIRECTOR, FOOD AND AGRICULTURE ISSUES, RESOURCES, COMMUNITY, AND ECONOMIC DEVELOPMENT DIVISION, U.S. GENERAL ACCOUNTING OFFICE, WASHINGTON, D.C.

Mr. DYCKMAN. Good afternoon, Mr. Chairman. With me is Andrea Brown, Assistant Director, who has been responsible for our

attempt to work on slotting fees. Again, I want to thank you for

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the opportunity to be here today to discuss our plans to study the

use of slotting fees in the grocery industry.

Slotting fees are generally payments from grocery manufacturers

to retailers to introduce new products. As you are well aware, there

is much anecdotal information about the use of slotting fees and its

impact on small business and consumers but very little hard evidence is available. You, therefore, asked us to conduct a study illustrating the use of slotting fees by individual companies for various grocery items. In making this request, you recognized that we

would have to rely on the voluntary cooperation of the grocery industry. It has not been a successful effort on our part.

In short, despite repeated attempts over the last 8 months, we

have been unsuccessful in gaining the cooperation needed from the

industry to conduct this study. Industry officials expressed concern

about providing us or any outside group information that they consider sensitive and proprietary and thus critical to their business

success.

In your letter of October 20, 1999, you requested that we study

the grocery industry’s use of slotting fees. Your letter also stated

that the Food Marketing Institute (FMI) and the Grocery Manufacturers of America (GMA), the two primary associations representing the industry, but not present today, had assured you of

their cooperation in our study.

Our overall plan was to conduct case studies of slotting fee practices in the industry for various supermarket items at several food

manufacturing companies and grocery store chains. The associations were to work with us to identify companies willing to speak

with us and to provide documentation to us.

However, companies are not required to provide us access to

their internal documents or discuss these trade practices with us.

Once the companies were identified, however, we planned to visit

them to discuss the extent of their use of slotting fees and obtain

documentation on the dollar amounts of slotting fees on several

food categories, accounting practices for these fees, and related

company policies and procedures.

We planned several strategies to safeguard the company data we

would be receiving. First, we planned to break the link between the

information and the source, and not attribute information in our

report to any one company or individual. Second, we planned to

safeguard this information. Third, we explained to the industry associations that we are not subject to the Freedom of Information

Act and that we do not disclose to the public any of our records

containing trade secrets and commercial or financial information.

We also obtained a pledge of confidentiality from you, Mr. Chairman, to safeguard specific company information from disclosure to

your Committee, its staff and any other Members.

In separate meetings in January 2000, we met with leaders of

the FMI and GMA to discuss our study approach. The associations

told us that they do not compile detailed information on slotting

fees because of its sensitive nature, and that we would have to obtain slotting fee information from individual member firms.

Over a period of several months we sought from FMI grocery

companies that would be willing to give us detailed information on

slotting fees. FMI stated that several members they contacted

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would not even want speak to us. However, the association did

identify two mid-size grocery chains that might be willing to meet

with us. Both of these grocery chains eventually did meet with us,

and we did discuss slotting fees in general terms but neither provided documentation nor specific information about the use of and

accounting for slotting fees in their businesses.

GMA, unfortunately, was even less successful in helping us gain

access to members and information. On our own we discussed slotting fees with a mid-size grocery store chain and three food manufacturers. Again, none of these companies were willing to provide

us with the type of documentation or the specific information we

were seeking.

Mr. Chairman, this concludes my prepared statement. We would

be happy to answer any questions after the witnesses finish.

[The prepared statement of Mr. Dyckman follows:]

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Chairman BOND. Thank you very much, Mr. Dyckman.

Ms. Offutt.

STATEMENT OF SUSAN E. OFFUTT, ADMINISTRATOR, ECONOMIC RESEARCH SERVICE, U.S. DEPARTMENT OF AGRICULTURE, WASHINGTON, D.C.

Ms. OFFUTT. Good afternoon, Mr. Chairman. I am pleased to be

here this afternoon to discuss the preliminary findings of our ongoing study, fresh fruit and vegetable markets, retail consolidation

and trade practices. It focuses on recent structural and marketing

changes in the produce industry.

Just last week the Economic Research Service published the first

in a series of reports associated with this project, ‘‘Understanding

the Dynamics of Produce Markets: Consumption and Consolidation

Grow.’’

Today I will talk about the preliminary results of industry interviews on trade practices. The final report is to be published at the

end of the year. A third report on retailer market power will be

published this coming spring.

The produce marketing industry has evolved considerably since

the 1980s. These changes are partly the result of shifts in consumer preferences for produce and partly of the reorganization of

the structure of the industry itself. Americans have become more

health conscious and as a result are eating more fresh fruits and

vegetables than ever. At the same time, consumers demand variety

and convenience.

Retailers have responded to consumers by expanding the variety

of products offered. Stores now offer year-round availability of

many fruits and vegetables, pre-cut produce and more packaged

and branded products.

The first chart which appears to my left shows that the number

of fresh produce items carried by retailers doubled in 10 years,

from 173 in 1987 to 345 in 1997.

[The chart follows:]

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The second chart which is to my right shows that during the

same period the share of branded produce increased from 7 percent

to 19 percent of total sales while the share of fresh cut produce and

packaged salads rose from 1 percent to 15 percent of total sales.

Accommodating these changes in consumer preferences has, therefore, led to an overall increase in the demand for shelf space in the

grocery store produce section.

[The chart follows:]

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Since rapid retail consolidation began about 5 years ago, the nature of transactions and coordination between produce shippers

and retail buyers has evolved. Consolidation in the retail industry

has occurred as growth in sales has slowed due to stable food

prices. There have been reductions in household spending for food

consumed at home as people eat out more. In addition, retailers

have faced increased competition from the non-traditional sector,

such as Costco and Wal-Mart. The retailers’ inability to increase

prices added to the higher costs of providing greater variety, additional services, as well as new store formats have encouraged grocery retailers to offset costs by seeking efficiency gains through

consolidation.

To take advantage of the potential efficiency gains, the fewer,

larger retailers have been changing the way they do business, moving from spot cash purchases in wholesale or terminal markets to

greater reliance on long-term contractual agreements and strategic

alliances. The buying and selling of produce has consequently become more complex. In today’s transactions, price may be just one

component of a more complicated exchange that may include fees

and services, along with the sale of produce.

Of particular interest today is the incidence of fixed and variable

fees or what we call trade allowances. A fixed fee is a payment that

does not vary with the volume of sales. Slotting fees are defined as

fixed, up-front payments to acquire shelf space for the introduction

of new products. They are but one example of these fixed fees.

Variable fees are assessed on a per unit basis and so over a season

vary with the volume sold. Advertising fees, rebates and volume incentives are often structured as variable fees.

When a trade allowance is a fixed fee paid by each and every

shipper, a small firm’s average cost of operation is greater relative

to a large shipper. A small shipper’s competitive position may be

eroded, and the imposition of the fixed fee may act as an effective

barrier to entry. In contrast, the variable fee affects shippers equally by lowering the effective unit price. In a competitive market, the

retailer passes along the lower price to the consumer, in the form

of overall lower retail prices or sales prices.

The shipper benefits when consumers buy more at lower prices.

Our interviews showed that shippers recognize the distinction between fixed and variable fees and, in fact, shippers are more likely

to complain about a fixed fee, such as a slotting allowance. However, it was the case that not all fees and services were viewed as

detrimental to the interests of shippers. Variable fees, such as performance-based volume incentives and promotional fees, may help

product movement and may provide competitive advantage but

shippers may question whether these fees actually increase demand for their product, either because of limited consumer response to the price changes or to a lack of accountability regarding

the retailer’s performance.

Based on the information obtained in our interviews, we find

that most shippers and retailers reported trade allowances, that include fixed and variable fees, and services had increased in incidence and magnitude over the last 5 years. The predominant type

of fees charged in bulk produce sales were variable fees which included volume incentives, promotional allowances and other per

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unit rebates. Fixed fees, which would include slotting fees are also

more likely to be associated with sales of fresh-cut and value-added

items as compared to the bulk produce.

Our analysis required information on the terms of exchange between produce shippers and retailers. When these exchanges occur

in spot transactions in terminal markets, prices are easy to observe. Indeed, the USDA collects and publishes just such data on

prices. However, when exchange takes the form of direct sales, or

a proprietary agreement between a supplier and a retailer, its

terms, that is prices, trade allowances, services required, are not

so easily observable.

As the produce business has moved increasingly to direct sales,

we have had to adjust in the way we conducted this study to turn

to a limited number of time-intensive, detailed personal interviews

with fresh fruit and vegetable shippers and national and regional

retailers. The main disadvantage of this approach is the lack of

uniformity in response, with respect to the details on the terms of

exchange, on exactly how much people will tell us about a fee, how

often it is charged and its size.

There are also concerns when we are limited in the number of

interviews we can do about how well the respondents actually represent industry norms.

Let me close by noting that our study focuses so far just on the

terms of exchange between shippers and retailers. We did not examine the upstream relationship between growers and shippers.

While some growers are also shippers, many are not, and our future work will seek to consider how growers experience the effects

of the increased incidence and magnitude of these trade allowances, of the fixed and variable fees. Growers and shippers may

benefit or suffer equally when retailers offer incentives or require

fees, but if there is a lack of competition in the market between

growers and shippers, the opportunities for passing the fees on to

growers certainly exists.

Thank you very much. I would be pleased to answer any questions at the end of the presentations.

[The prepared statement of Ms. Offutt follows:]

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Chairman BOND. Thank you very much.

Professor Gundlach.

STATEMENT OF GREGORY T. GUNDLACH, PH.D., PROFESSOR

OF MARKETING, MENDOZA COLLEGE OF BUSINESS, UNIVERSITY OF NOTRE DAME, NOTRE DAME, INDIANA

Mr. GUNDLACH. Thank you, Mr. Chairman and Members of the

Committee. In summarizing my more lengthy statement I will concentrate on four main points.

Chairman BOND. I should have pointed out earlier as is standard

practice, we make the full statements of all the witnesses part of

the Record. And I apologize for not having done that. Thank you

for summarizing.

Mr. GUNDLACH. Thank you. My first point regards the widening

conceptual domain of slotting. As noted by others today, although

originally defining supplier payments to obtain a slot in a wholesaler’s warehouse, the term’s meaning has expanded in practice.

This expansion has led to varying interpretations and some confusion.

While some confine the term to its original meaning, others use

it to refer to an assortment of trade-based payments that range

across a product’s entire distribution life cycle and to apply to both

new as well as existing products. Opinions also differ as to what

constitutes slotting based on the nature of payment terms that are

involved. Some narrowly view payments that are unconditional,

fixed in nature, handled off-invoice and paid up-front to be slotting

fees. Others view slotting more broadly to encompass other payment terms.

Opinions also differ as to the characterization of slotting fees as

either motivated by retailers and imposed on suppliers or motivated by suppliers and offered to retailers. Finally, though attention toward slotting has focused on its application in the marketing

of food products, slotting is known to exist in other industries and

also on the Internet.

My second point relates to the status of research and challenges

faced by those studying slotting. Though examined by academics,

members of industry and policymakers, our knowledge of this practice is still in the early stages of development. My examination of

published studies suggests that research on slotting has largely

been devoted to exploratory work and the development of theory.

The empirical research that has been conducted has been mainly

descriptive, reporting on the form and occurrence of slotting. To my

knowledge, only a few studies have conducted empirical tests of

theory against information and data acquired in the field.

Beyond acknowledged variation in terminology, interpretation

and practice, those studying slotting face considerable challenges.

As pointed out in Chairman Bond’s opening remarks, most difficult

is overcoming the apprehension of some participants to cooperate

in discussions or grant access to information and data. Further contributing to this challenge is that many slotting arrangements are

verbally negotiated and often go undocumented.

My third point addresses theory and emerging insights for the

consequences of slotting. In this regard, research that has been

conducted provides some understanding of their effects on competiVerDate 11-MAY-2000 08:20 Jun 11, 2001 Jkt 010199 PO 00000 Frm 00059 Fmt 6633 Sfmt 6602 E:\HEARINGS\67960 pfrm10 PsN: 67960
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tion and consumers. The pro-competitive benefits of slotting are

generally explained in two ways depending on how the payments

are characterized.

Slotting arrangements thought to be motivated by retailers and

imposed on upstream suppliers are explained mainly in relation to

the proliferation of new products and their high failure rate. Slotting is theorized to improve the efficiency of introducing and distributing these products.

Slotting arrangements thought to be motivated by suppliers and

offered to retailers to assist them in marketing the supplier’s products are explained mainly in relation to the rising importance and

increasing effectiveness of trade promotion and in-store marketing.

Slotting is theorized to improve distribution efficiency, facilitate

stronger inter-brand competition and to address free-riding concerns that suppliers have for their marketing efforts.

Theories of anti-competitive harm from slotting focus mainly on

how they might be used by retailers and suppliers to distort the

competitive process and result in harmful effects for consumers.

For retailers, attention focuses on the ability of a dominant retailer

with bargaining power over its suppliers to discriminate and

charge fees that are unrelated to or in excess of their associated

costs. When practiced in this way, concerns focus on the creation

of barriers to entry and the potential for increased supplier concentration, lower rates and quality of innovation, reduced variety

and choice, and less consumer information that may result.

Additional concern centers on the prospect that the dominant

retailer may also face limited competition in its downstream

consumer markets. Under such circumstances the concern is that

having charged an unreasonable fee the retailer may exercise its

market power, keeping the surplus rather than passing it onto consumers in the form of lower prices or applying it in other beneficial

ways. Where this occurs consumers can end up paying higher

prices and/or receiving fewer benefits than they would but for the

slotting.

For suppliers, attention focuses on the ability of a dominant supplier to condition its payments to retailers on the right to exclude,

limit or otherwise marginalize rival competitors. Concern centers

on the prospect that excluded or disadvantaged suppliers may no

longer be in a position to constrain the exercise of market power

on the part of the powerful supplier. Some forms of slotting payments may be conditioned on the right to exclude rivals or to simply limit or disadvantage their ability to compete. Where these

rights materially raise rivals’ costs, they can marginalize existing

rivals or deter entry by potential competitors. Costs are raised

given the added burden of overcoming the imposed competitive limitation or disadvantage.

In the absence of sufficient offsetting benefits or where such benefits could be achieved in some less exclusionary or restrictive way,

slotting arrangements of the kind described can diminish competition and result in harm to consumers. Consumers are harmed

where the arrangement enables the powerful supplier to create,

preserve or enhance market power.

My fourth and final point addresses recommendations for future

research. Let me first applaud this Committee’s efforts to approVerDate 11-MAY-2000 08:20 Jun 11, 2001 Jkt 010199 PO 00000 Frm 00060 Fmt 6633 Sfmt 6602 E:\HEARINGS\67960 pfrm10 PsN: 67960
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priate funding for examining slotting practices. Future research

that is conducted should first acknowledge the increasing array of

trade arrangements and practices that have come to fall under the

rubric of slotting. Future research should also emphasize a deeper

conceptual and more empirical understanding of slotting.

Data gathered in future studies should in particular include

disaggregate or transaction level data that enables researchers to

more fully understand the nature of slotting arrangements and

how they are conducted. Future research should also focus on the

continued development of theory for understanding slotting. Specific efforts should be devoted to slotting that is motivated by retailers and imposed on suppliers. Though considerable anecdotal

evidence characterizes slotting in this way, we continue to be challenged to fully understand these arrangements and their effects.

Finally, research should be directed toward understanding slotting in other industries and in particular its emergence in electronic commerce. Though important efforts currently focus on slotting in the marketing of food products, much could be learned

through examining its application in other settings.

Thank you, Mr. Chairman, and Members of the Committee.

[The prepared statement of Mr. Gundlach follows:]

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Chairman BOND. Thank you very much, Professor Gundlach.

Let me ask Mr. Dyckman. The GAO has in the past successfully

obtained confidential information from other industries; has it not?

Mr. DYCKMAN. Yes, on a case-by-case basis we have had some

success, for example, in the airline industry and then in the defense industry. Frequently it depends on whether or not the contractor or the private firm has some interest in cooperating with

us but we have had some success stories; that is correct.

Chairman BOND. And have the confidentiality agreements

worked well? Have you had any problems with information that

you have been turned over, proprietary information leaking out?

Mr. DYCKMAN. Not to my knowledge, sir.

Chairman BOND. How does the cooperation you have experienced

in that area compare with, I would use the word cooperation lightly, but the relationship you had in these industries?

Mr. DYCKMAN. As you know, Sir, we do not have the information

that you desire. We went to the associations. We made a good faith

effort. We explained to them and they knew quite well that we did

not have authority but we made certain assurances to them. You

went out of your way to write us a letter giving a pledge of confidentiality.

They told us they contacted some of their members. One of the

associations e-mailed 55 of their members or so. They did not encourage their members to cooperate with us. So I think without encouragement from the associations it would have been very difficult, and we anticipated that quite frankly. I have worked for

GAO for 31 years and this is the first time I have had to report

to a committee that I have been unsuccessful in trying to carry out

the work. So we do not feel fulfilled.

As you said in your opening statement we gave it our best efforts, but without the cooperation of the industry we could not

carry this out.

Chairman BOND. Thank you very much, Mr. Dyckman. Ms.

Offutt, it is clear from your testimony that payments, up-front fees

have been increasing. Is this practice increasing over recent years?

Ms. OFFUTT. Yes.

Chairman BOND. You mentioned something that struck me. You

mentioned in the competitive marketplace, in the real competitive

world—we all like to think there may be a real competitive world

out there—that these prices would result in lower prices that the

consumer would pay because obviously there would be competition.

Do you have any evidence that these payments have, in fact, lowered fees, the ultimate price that consumers pay at retail?

Ms. OFFUTT. We did not look directly at evidence that would

have suggested that, for instance, a fee paid for an advertising

campaign, to advertise a sale, actually resulted in lower supermarket prices or actually induced people to buy more. We did not

ask for that kind of transaction data from the retailers.

Chairman BOND. You suggest, in your written testimony, that

the study did not review how the increased incidence and magnitude of fees effects growers. Based on what we have heard here

today can we expect you all to pursue this question and look to the

impact it may be having on growers?

Ms. OFFUTT. Yes.

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Chairman BOND. Did you review any individual markets to see

the competitive impact generally?

Ms. OFFUTT. In the third stage of the study we are going to look

more directly at the question of whether or not the practices are

having anti-competitive effects. The study that we are completing

now that I spoke about this afternoon is what was referred to as

a more descriptive approach. What are the fees? How are they incurred?

But it does not actually allow us to draw a judgment about their

harmful or beneficial effect. It just gives us the basis for going on

to ask more.

Chairman BOND. We need that basis and it seems to me that we

have outlined a pretty clear area for inquiry here because I think

certainly the testimony we have had today, the testimony that was

presented to the FTC indicates there are potentially some very serious problems. Did the economic research service run into any of

the problems that the GAO encountered in finding—you said you

talked only about shippers or retailers willing to talk about the

practices and about the fees?

Ms. OFFUTT. Yes, we did. We had on both sides shippers and retailers, people who were not interested in speaking with us at all.

Some were more forthcoming about the nature and the size of fees

but I think it is fair to say overall the retailers were less forthcoming than shippers were in answering our questions. And really

we got very little of the kind of detailed transactions data that you

have to have to make these determinations of benefit and harm.

Chairman BOND. As I stated at a previous hearing, in one of my

prior lives I was an antitrust attorney working on the RobinsonPatman Act and related matters. I know how much fun it is to

compile that kind of information. Nevertheless, it seems to me that

that could be critically important and I would hope that the Economic Research Service would pursue the information and the impact that this has on growers as well as those down the line and

ultimately the consumers. Are the consumers getting any better

deal, or are they simply losing choices that should be available to

them?

Professor Gundlach, while we are speaking about that, you

talked about some of the considerations. Based on your review

what kind of antitrust laws or consumer protection laws might be

called into play here? Talk about having additional laws. Do you

think, No. 1, are there adequate laws and what would they be and

what, based on your experience, might be needed from here?

Mr. GUNDLACH. Mr. Chairman, I hesitate to make a comment regarding the nature of laws that might apply to the specific practices that we are talking about. Though I do have a legal background, my expertise is more in the behavioral aspects of the fees

and how they might have implications for competition. So I respectfully would not like to answer that question, if I may not.

Chairman BOND. OK. I will throw out a few, in addition to the

Robinson-Patman Act, sections I and II of the Sherman Act, section

V of the FTC Act, the Clayton Act. It sounds like there are some

good weapons out there but based on your study with the growth

of these slotting practices what would you say the future holds for

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the small grower in this instance or, more broadly, the small manufacturer who is seeking access to retail shelves?

Mr. GUNDLACH. If I can take a step backwards, I think that slotting is really symptomatic of the confluence of three distinct forces.

One of those forces has been spoken of today and that is the shift

of power that has occurred in many of our distribution channels

into retailers’ hands. The second force is the proliferation of new

products and the third force is the increasing importance of trade

promotion. All of those are coming together in terms of their effect

on slotting.

In terms of what the future holds, at the present rate of progress

slotting will make it very difficult for small, independent and those

suppliers without resources, overcome some of the barriers that

these forces have brought forth. Particularly that these fees will

provide high-entry barriers for smaller firms.

Chairman BOND. And what is your analysis of the impact that

those fees themselves may have and the results of those fees in

limiting access of smaller manufacturers have on the choices available to the ultimate consumer? When the consumer goes into the

marketplace, does she have fewer choices? When I go into the marketplace, am I cut out, likely to be cut out of having an opportunity

to buy a better quality product at a lower price?

Mr. GUNDLACH. To the extent that they do create barriers to

entry for firms that would offer higher-quality products—more innovative products in the marketplace, I do think they create challenges of choice. These challengers are not only in terms of the options, but in the process of choice that consumers have. While

smaller suppliers may be able to find access to consumer markets

through other forms of distribution, these challenges will raise the

costs to consumers of having to seek out these other forms of distribution to secure the options and variety that they desire.

Chairman BOND. Thank you very much, Professor. We have been

joined by my colleague and Ranking Member, Senator of Massachusetts, Senator Kerry. Welcome.

OPENING STATEMENT OF THE HONORABLE JOHN F. KERRY,

RANKING MEMBER, COMMITTEE ON SMALL BUSINESS, AND

A UNITED STATES SENATOR FROM MASSACHUSETTS

Senator KERRY. Mr. Chairman, thank you very much. I apologize

to you and to all the panelists for not being able to be here sooner.

I personally started the ball rolling on the issue of slotting fees

over a year ago, and I wanted to participate in the entire hearing.

But today has been one of those exceptionally conflicted days

around here and I apologize for that. On the other hand my able

staff has been here throughout and I look forward to reviewing the

Record when it becomes available.

The practice of charging slotting fees, in my judgment, is highly

questionable. The industry’s conduct and its unwillingness to cooperate fully with the efforts to understand the use of slotting fees

has effectively invited Congress to put the practice under a microscope in order to determine to what extent it does effect small businesses and consumers. I want to thank you, Mr. Chairman, for

your significant and genuine interest in this and for your significant collaboration in it. I think that your own experience as an AG

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and your experience as a Governor have prompted you to be automatically tuned in to what this means. In a free-market system,

which we pride ourselves on having, this practice does not seem

right, nor does it smack, at least on the surface, and I emphasize

on the surface, nor does it smack of normal free-market practices

to know that somebody could have a really rather extraordinary

product, but be very small and not have the power to be able to

get their product to consumers. Even though it could conceivably

cost significantly less and be a better product.

Now, conceivably, just as a cost of doing business, like franchising costs, it might, conceivably under some readily interpretable, clear fairly arrived at and accessible system, be a cost that

people who manufacture something need to factor into their cost of

goods and ultimately pass onto the consumer. But, that does not

appear to be what we are seeing here. Neither accessible, nor rational, nor clear, and most importantly, instances that we have had

reported to us by individual small retailers which appear to be on

many occasions spontaneously arrived at, perhaps in some cases

even without the knowledge of upper management or of corporate

headquarters. Though that does not appear to be true in cases involving chains. But, there are instances where we have seen a form

of creative entrepreneurial effort engaged in by people who happen

to control the access to those shelves.

So, there is a lot going on here. And frankly, as I said earlier,

it invites an even greater level of scrutiny and much more suspicion that we are having trouble getting answers. There have been

a number of retailers that I have talked to privately, and I have

heard all kinds of horror stories, which I could repeat, and some

of them have been repeated, but they will not go public. And the

reason they will not go public is pretty clear. I mean the capacity

for being blackballed and for suffering economic injury as a consequence, particularly in a world where they do not quite know

how far Congress is really going to go here? What is the sustainability of Senator Bond and Senator Kerry and the Small Business

Committee’s interest in this? How far will this go? So if we go public a year from now, their interest may weigh in and they get

burned. I understand that.

And so it is important for us to be very clear about the sustainability of this effort and our efforts to try and understand it. I have

not talked to the Chairman about this yet, but maybe this is something that is more perfectly suited to the Permanent Subcommittee

on Investigations, which might be able to be of greater assistance

to the GAO and/or the FTC in their efforts to pursue it.

I do not know the answers to these questions. I did not come

here with a predetermined outcome, but in the absence of our ability to be able to create a rationale and an understanding of this,

and in the face of increasing reports from people who testify as

they have today and on other occasions about an uncooperative industry, we need to understand it better.

So my message today, I am not going to ask questions of the

panel because I do not like coming in late and being repetitive, but

as I said I will review this record carefully.

I first raised the issue because a businessman in the Midwest

told me how his business had suffered time and again because he

70

was hit with onerous fees to sell his product instead of another

brand. Rather than both brands competing fairly, even when there

was shelf space for both and even when his brand was selling

well—making money for the business and he was filling repetitive

orders based on consumer demand—he was forced to pay fees to

get his product on the shelves. And that sparked my interest because it just did not seem right. It did not seem fair. It did not

seem consistent with the concept of this Committee’s commitment

to help small businesses thrive.

So, Mr. Chairman, I thank you for your energy and effort. And

I hope, clearly, that the FTC and the GAO will be able to complete

their task. For those out there who are fighting this practice, our

message to you really is come and talk to us. Help us to understand. We have proven our ability, to maintain anonymity. We

have proven our ability, I believe, to maintain even our interest

and we will do so as we go down the road. Thank you, Mr. Chairman.

[The prepared statement and attachment of Senator Kerry follow:]

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Chairman BOND. Thank you very much, Senator Kerry. Thank

you for your initiative and support for this effort and for the authority that you bring to our efforts.

A couple points you mentioned, we have been able to gather information from many aggrieved parties by slotting. If you will contact this Committee, we can assure you of confidentiality in hopes

of learning more.

Second, under transparency I would only reiterate what the Senator from Massachusetts said. One of the first things you want to

know about this process is if it is justified, if it is reasonable, if it

is necessary and economically beneficial, why in the dickens is it

kept so secret? That, more than anything else, makes us suspicious. If you have got a good justification, why don’t you lay it

out? If it is the best thing since sliced bread, why isn’t somebody

willing to talk about it? That is why the lack of transparency as

discovered by the GAO and by our continuing efforts makes it highly suspicious.

Third, you mentioned the Permanent Subcommittee. I had an opportunity to talk with Senator Collins of Maine about this today.

She had been approached by a number of produce farmers from

Maine and I think that this may be a good area for us to refer to

the Government Affairs Committee for their work and assistance

on this as well so they can continue to help us.

But I want to thank all of our witnesses for taking time out of

a busy schedule to attend today. I know we have a number of

produce farmers in the audience who are here and taking time out.

If you choose to do so, would you hold up your hands so we can

see who is here? Thank you all very much. We will only take pictures of the backs of your heads. We appreciate very much your

coming. It has been an informative hearing.

There is clear evidence of a very disturbing impact on small

produce farmers from these fees. The use of fees raises numerous

issues, not the least of which is why the fees may be necessary. It

is unfortunate that the industry representative did not appear

today. We will be asking them to explain why they chose not to and

why if the process is such a good one, they are not willing to defend

it.

We again note there has been much work done on slotting allowances, including increased attention by the FTC. We would urge

our friends at the FTC to give careful consideration to analysis of

this practice and determine the competitive or anti-competitive effects. We, as I said, intend to follow up with the FTC and we have

urged, at this point have included in the Senate mark on the

Commerce, Justice, State, and the Judiciary Committee’s Appropriations bill $900,000 for them to do further work in this area. We

intend to follow up with them to assure that that additional money,

if we can get it to them, will be used to collect the data, establish

guidelines and take such other necessary steps.

I would urge the ERS to continue and expand upon its work as

well. Professor Gundlach, we will look forward to hearing from you,

and your continuing analysis. Finally, for anyone who does have information, we would ask that you forward it to the Small Business

Committee.

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I thank all witnesses and those who are here in the audience

today for joining us. We obviously are going to continue to be revisiting this as long as this practice remains widespread, and particularly if it remains hidden from view, we are going to continue to

do our best to see that it is brought out in the open. Thank you

very much. The hearing is adjourned.

[Whereupon, at 2:40 p.m. the Committee was adjourned.]

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