(Bloomberg) -- Years before she became the chair of the US Federal Trade Commission, Lina Khan lamented a lack of competition in candy.
Her views gain new relevance now that she leads the agency that’s expected to take a tough look at whether Mars Inc. should be allowed to buy Cheez-It maker Kellanova for nearly $36 billion, the largest packaged food deal in years.
The tie-up would catapult Mars into the top ranks of the industry behind Unilever Plc, PepsiCo Inc. and Nestle SA. The companies say they have “complimentary” portfolios and the transaction would help Mars expand its snack offerings beyond chocolate.
In 2013, Khan wrote a piece for Time Magazine blaming the “chocolate oligopoly” for a lack of candy makers. At the time she was a junior staffer at New America, a progressive, Washington-based think tank.
Of the 40-odd brands of candy available at her local Safeway, “almost all of them are produced by one of three companies: Hershey, Mars, and Nestle, with a specialty product or two by Ferrara and Palmer’s Company,” Khan wrote.
She floated a solution: “We could start by reviving some of our antitrust laws, which we traditionally used to create a level playing field among companies, regardless of size.”
Over a decade later, Khan is on the forefront of the push to reinvigorate competition from her perch at the helm of the US antitrust and consumer protection agency.
Given the inflationary environment, the FTC is likely to take a hard look at the deal’s potential impact on consumer food prices, said James Weingarten, an antitrust partner at Milbank.
“They are going to look hard product-line by product-line,” said Weingarten, who was the lead litigator on the agency’s case seeking to break up Kroger Co.’s proposed takeover of Albertsons Cos., the largest US supermarket deal ever, before departing in June.
The FTC declined to comment on its review of the transaction. The agency has 30 days after Mars and Kellanova submit the deal for its required antitrust review to decide if they want to pursue an in-depth probe.
Kellanova CEO Steve Cahillane downplayed the potential antitrust risk.
“If you just take a stroll down the aisle in the supermarket of the bars, it’s an incredibly fragmented space, with lots of choices for consumers, and it’s literally the only overlap that we have,” Cahillane told CNBC in an interview, adding that Kellanova “will work with the FTC, and we don’t foresee any issues.”
Mars said it would work with regulators and doesn’t expect any “significant hurdles to regulatory approval.”
“This transaction unites two companies with complementary portfolios of products across multiple geographies and will lead to greater innovation and more snacking choices for consumers,” the company said in a statement.
Kellanova declined to comment.
While Mars and Kellanova have little overlap in chocolate, the two companies compete heavily in snack bars, between the Nutri-grain and Nature’s Bakery brands, and in protein bars between KIND and RXBAR.
The companies may be able to resolve the competition issues by divesting one of the overlapping brands, said Jennifer Rie, Bloomberg Intelligence’s antitrust analyst.
But the deal also comes amid historic levels of grocery inflation, with food prices among the key drivers of economic discontent since most households shop for groceries multiple times every week. Some antitrust advocates are pushing the FTC to block the merger.
“This deal, likely in reaction to increasing grocery retail concentration, represents yet another alarming step in the cycle of consolidation that drives up food prices for small businesses and consumers across the country,” said Morgan Harper of the American Economic Liberties Project, an advocacy group close to Khan.
Food prices are also in the political spotlight as the presidential contest heats up. Vice President Kamala Harris has embraced policies aimed at reducing food prices in her campaign, calling for a federal ban on food and grocery price gouging – and greater antitrust enforcement on food mergers.
©2024 Bloomberg L.P.
