Distribution, Competition, and Antitrust / IP Law

Milk expiration dates and clever cartels

A glass of milk Français : Un verre de lait

(Photo credit: Wikipedia)

The Planet Money podcast this week has a story about the Greek economy.  According to the podcast, there is a Greek milk producer “cartel.”  Of course cartels are unlawful in Europe, just as they are in the U.S.  So it seems that Greek milk producers have engineered a clever “cartel” — they have lobbied the Greek government to require that bottled milk have an expiration date no more than 7 days after the milk is obtained from the cow.  As a result, milk produced elsewhere in Europe either isn’t available in Greece or is (I assume) more difficult and more expensive to obtain.

The story is an interesting one, and caused me to pause for a moment about the use of the word “cartel.”  In the U.S., this sort of lobbying would almost certainly be protected by the Noerr-Pennington petitioning immunity.  But what if the milk producers got together and agreed on expiration date rules without obtaining a regulation?

Such an agreement might be a form of a “cartel.”  But it wouldn’t be focused on price — at least not directly.  So it probably wouldn’t be subject to the per se rule.  But I think there’s not much reason to worry about such “cartels,” because they wouldn’t work.  Such a milk “cartel” wouldn’t stop manufacturers outside of Greece from exporting milk to Greece (indeed, it might make longer-shelf-life milk produced outside Greece more attractive to Greek consumers), so Greek manufacturers have little or no incentive to form one.  Only the force of government regulation interferes with distribution of non-Greek milk in Greece.

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About Howard Ullman

Antitrust, competition, and IP law enthusiast.

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