HF 2149

Introduction - 94th Legislature (2025 - 2026)

Posted on 03/10/2025 02:46 p.m.

A bill for an act
relating to consumer protection; establishing the Consumer Grocery Pricing Fairness
Act; providing civil penalties; proposing coding for new law in Minnesota Statutes,
chapter 325D.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [325D.80] SHORT TITLE.
new text end

new text begin Sections 325D.80 to 325D.85 may be cited as the "Consumer Grocery Pricing Fairness
Act."
new text end

Sec. 2.

new text begin [325D.81] DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Scope. new text end

new text begin For the purposes of sections 325D.80 to 325D.85, the terms
defined in this section have the meanings given.
new text end

new text begin Subd. 2. new text end

new text begin Antitrust law. new text end

new text begin "Antitrust law" has the meaning given under the federal Clayton
Act, United States Code, title 15, section 12(a), and includes section 5 of the Federal Trade
Commission Act, United States Code, title 15, section 45, and Minnesota laws similar to
the Clayton Act and the Federal Trade Commission Act.
new text end

new text begin Subd. 3. new text end

new text begin Covered good. new text end

new text begin "Covered good" means a grocery item, including an item
described in the definition of eligible foods under Code of Federal Regulations, title 7, part
271.2(1) or (2), or a consumer packaged good. Covered good does not include gasoline,
prescription drugs, tobacco, or alcoholic beverages.
new text end

new text begin Subd. 4. new text end

new text begin Covered retailer. new text end

new text begin "Covered retailer" means a person that sells covered goods
to end purchasers at one or more physical locations in Minnesota.
new text end

new text begin Subd. 5. new text end

new text begin Covered supplier. new text end

new text begin "Covered supplier" means a person who:
new text end

new text begin (1) produces and sells a covered good; and
new text end

new text begin (2) sells, directly or through the covered supplier's agent or a third party the covered
supplier contracts with, a covered good that is produced or manufactured by the person,
directly or through the covered supplier's agent or a third party the covered supplier contracts
with, to a covered retailer or covered wholesaler in an aggregate amount exceeding
$6,000,000,000 per year, as adjusted each year by an amount equal to the percentage increase,
if any, in the Consumer Price Index for All Urban Consumers published by the United States
Department of Labor.
new text end

new text begin Subd. 6. new text end

new text begin Covered wholesaler. new text end

new text begin "Covered wholesaler" means a person that purchases a
covered good to resell or distribute the covered good to a covered retailer in Minnesota.
new text end

new text begin Subd. 7. new text end

new text begin Dominant covered retailer. new text end

new text begin "Dominant covered retailer" means a covered
retailer with:
new text end

new text begin (1) annual retail sales of covered goods in an aggregate amount exceeding
$18,000,000,000, as adjusted each year by an amount equal to the percentage increase, if
any, in the Consumer Price Index for All Urban Consumers published by the United States
Department of Labor; and
new text end

new text begin (2) not less than one storefront or distribution center located in more than 20 states,
including Minnesota.
new text end

new text begin Subd. 8. new text end

new text begin Person. new text end

new text begin "Person" includes each entity:
new text end

new text begin (1) a person owns or controls, in whole or in part; and
new text end

new text begin (2) that owns or controls, in whole or in part, the person.
new text end

new text begin Subd. 9. new text end

new text begin Price differential. new text end

new text begin "Price differential" means, with respect to the volume unit
basis of a covered good purchased by a covered retailer or covered wholesaler when
compared to the volume unit basis of a product purchased by a dominant covered retailer:
new text end

new text begin (1) the difference in price of the product multiplied by the quantity sold; or
new text end

new text begin (2) the difference in the price equivalent of the terms of sale of the product, adjusted by
the time value of money to account for any difference in payment terms, multiplied by the
quantity sold.
new text end

new text begin Subd. 10. new text end

new text begin Same terms of sale. new text end

new text begin "Same terms of sale" means, with respect to two different
agreements, terms of sale that are identical on a per-unit basis, excluding shipping and
delivery costs that vary due to (1) the distance, speed, or method of shipping and delivery,
or (2) the availability of self-distribution.
new text end

new text begin Subd. 11. new text end

new text begin Terms of sale. new text end

new text begin "Terms of sale" means a substantive term and condition of
sale commonly subject to negotiation and competition, including but not limited to price,
discounts, rebates, delivery terms, payment terms, package size, promotional allowances,
marketing devices, merchandising arrangements, terms of distribution, and any other similar
terms, that is considered on a per-unit basis as appropriate.
new text end

new text begin Subd. 12. new text end

new text begin Trade channel. new text end

new text begin "Trade channel" means a distinct and diverse pathway through
which a covered good is marketed, distributed, and sold to consumers in the United States,
including a traditional supermarket, hypermarket, discount store, convenience store, online
or e-commerce retailer, specialty food store, mass merchandiser, wholesale club, and other
retail establishment, platform, or entity that engages in the sale of covered goods, either
primarily or as a segment of the retail establishment, platform, or entity's broader retail
offering, and competes for consumer grocery business.
new text end

new text begin Subd. 13. new text end

new text begin Volume unit basis. new text end

new text begin "Volume unit basis" means the base unit of measurement,
not exceeding a truckload, by which a purchase quantity is measured in purchase agreements
between a covered supplier and a covered retailer or covered wholesaler.
new text end

Sec. 3.

new text begin [325D.82] CONSUMER GROCERY PRICE FAIRNESS.
new text end

new text begin Subdivision 1. new text end

new text begin Covered supplier; terms of sale. new text end

new text begin It is unlawful for a covered supplier
to:
new text end

new text begin (1) directly or through the cover supplier's agent, fail to extend the same terms of sale
of a covered good to all covered retailers and covered wholesalers that purchase the covered
good on the same volume unit basis in reasonably contemporaneous sales; or
new text end

new text begin (2) fail to provide, within 14 days of the date the covered supplier receives a written
request from a covered retailer or covered wholesaler that has purchased a covered good or
received an offer including terms of sale for a covered good from the covered supplier,
directly or through the covered retailer or covered wholesaler's agent, the anonymized terms
of sale from all contracts with dominant covered retailers that purchased the same covered
good on the same volume unit basis during the 180-day period prior to the date the purchase
or offer including terms of sale was made.
new text end

new text begin Subd. 2. new text end

new text begin Covered supplier; covered goods. new text end

new text begin It is unlawful for a covered supplier, directly
or through the cover supplier's agent, to refuse the sale of a covered good to a covered
retailer or covered wholesaler:
new text end

new text begin (1) on the basis of a distinction in channels of trade or other similar basis, if the effect
is to facilitate a difference in terms of sale in violation of subdivision 1, clause (1); or
new text end

new text begin (2) if:
new text end

new text begin (i) the covered retailer is not a dominant covered retailer;
new text end

new text begin (ii) the covered retailer or the covered wholesaler has made and completed payment for
purchases from the covered supplier within the previous 12 months;
new text end

new text begin (iii) the covered retailer or the covered wholesaler has made a request of the covered
supplier to provide to the covered retailer or covered wholesaler the same terms of sale
provided to other covered retailers or covered wholesalers, consistent with the terms of this
section; and
new text end

new text begin (iv) a covered supplier's justification for refusing to sell a covered good to the covered
retailer or covered wholesaler is not commercially reasonable.
new text end

new text begin Subd. 3. new text end

new text begin Dominant covered retailer. new text end

new text begin It is unlawful for a dominant covered retailer, a
dominant covered retailer's purchasing agent, or a third party a dominant covered retailer
contracts with to purchase covered goods to:
new text end

new text begin (1) impose on or require a covered supplier to comply with terms of sale with respect
to a covered good if the dominant covered retailer knows or reasonably should know that:
new text end

new text begin (i) the dominant covered retailer or the dominant cover retailer's purchasing agent is
acquiring more of the covered good than the dominant covered retailer is able to sell between
the dominant cover retailer's regular purchase intervals; and
new text end

new text begin (ii) a purchase by the dominant covered retailer or the dominant covered retailer's
purchasing agent under the terms of sale is likely to result in an unreasonably diminished
availability of the covered good to another covered retailer; or
new text end

new text begin (2) directly or indirectly take an action that the dominant covered retailer, purchasing
agent, or third party intends, knows, or should know coerces or induces a covered supplier
to violate this section.
new text end

new text begin Subd. 4. new text end

new text begin Agency liability. new text end

new text begin A covered supplier or dominant covered retailer, as applicable,
is liable for a violation of this section committed by a third party contracted by the covered
supplier or dominant covered retailer.
new text end

Sec. 4.

new text begin [325D.83] DEFENSES; IMMUNITY.
new text end

new text begin Subdivision 1. new text end

new text begin Defense to unlawful conduct. new text end

new text begin A person alleged to have engaged in
unlawful conduct under section 325D.82 is not liable for the alleged unlawful conduct if
the person demonstrates by a preponderance of the evidence that:
new text end

new text begin (1) the difference in the terms of sale was predominantly attributable to a covered retailer
engaging in self-distributing the covered good at issue or otherwise lowering the covered
supplier's overall costs through genuine efficiencies, including but not limited to economies
in distribution or manufacturing;
new text end

new text begin (2) a covered retailer voluntarily accepted terms of sale relating to a covered good that
were not the same terms of sale as another covered retailer's terms of sale in exchange for
commercially reasonable consideration, provided the acceptance of the other terms was not
pretextual, coerced, or made under duress; or
new text end

new text begin (3) the terms of sale applied only to circumstances involving an actual or imminent
deterioration of perishable goods, obsolescence of seasonal goods, distress sales under court
process, or sales in good faith while discontinuing business in the goods concerned.
new text end

new text begin Subd. 2. new text end

new text begin Covered supplier immunity. new text end

new text begin If a covered supplier did not collude with the
relevant dominant covered retailer in a scheme that violates antitrust laws, the covered
supplier is immune from liability for a violation of section 325D.82 if the covered supplier
demonstrates by a preponderance of the evidence that:
new text end

new text begin (1) a dominant covered retailer required the covered supplier to commit or imposed the
violation on the covered supplier;
new text end

new text begin (2) the covered supplier would have suffered substantial harm to the covered supplier's
business if the covered supplier refused the dominant covered retailer's demand; and
new text end

new text begin (3) the covered supplier made a good faith effort to disclose the dominant covered
retailer's conduct to the attorney general.
new text end

Sec. 5.

new text begin [325D.84] ENFORCEMENT.
new text end

new text begin The attorney general or a person injured by a violation of section 325D.82 may file suit
to obtain:
new text end

new text begin (1) an injunction to cure a violation of section 325D.82;
new text end

new text begin (2) a civil penalty in an amount not greater than:
new text end

new text begin (i) one and one-half times the actual damages; or
new text end

new text begin (ii) the pricing differential suffered by a covered retailer or a covered wholesaler; or
new text end

new text begin (3) both types of relief provided under clauses (1) and (2).
new text end

Sec. 6.

new text begin [325D.85] LIMITATION; OTHER LAW.
new text end

new text begin Subdivision 1. new text end

new text begin Business relationships. new text end

new text begin Sections 325D.80 to 325D.85 do not require a
person to do business with another person, unless the refusal to do business otherwise
violates section 325D.82.
new text end

new text begin Subd. 2. new text end

new text begin Antitrust laws; no effect. new text end

new text begin Except as otherwise provided in sections 325D.80
to 325D.85, nothing in sections 325D.80 to 325D.85 limits, impairs, or supersedes an
antitrust law.
new text end