Modernizing Competition Policy and Law: The Impact of Marketing Developments on the Legal Treatment of Price Maintenance in the United States, the European Union, and China

Abstract

Competition policy and law toward price maintenance (e.g., resale price maintenance, unilateral price policies, minimum advertised prices) draws on scholarly perspectives and theory developed over a half century ago. Since that time, changes to marketing practice have caused scholars to question the practical relevance of the perspectives and theory and to call for the modernization of competition policy and law toward price maintenance. Responding to these calls, the authors examine three important developments in contemporary marketing practice and assess their impact on the legal treatment of price maintenance in the three largest economies: the United States, the European Union, and China. Their analysis reveals significant differences in how each jurisdiction is responding to (1) increasing market concentration and accompanying shifts in interfirm power, (2) advances in information technology and the commercial use of the internet, and (3) developments in cross-channel shopping and the rise of omnichannel distribution. Their findings pose implications for future public policy, marketing practice, and academic scholarship and contribute to the modernization of competition policy and law.