In the realm of comprehending competition, Canada notably lags behind the United States. While both nations grapple with antitrust concerns, the United States distinguishes itself through its unwavering vigilance against monopolies and publicly owned entities. The Department of Justice in the U.S. actively pursues companies and their executives, often resulting in convictions and jail sentences. Remarkably, their investigations are characterized by swiftness, taking mere months instead of dragging on for years. Even complex cases, such as the canned tuna price-fixing scandal, have been met head-on.
U.S.-based companies have grown remarkably cautious and strategic when pursuing mergers and acquisitions. The Kroger-Albertsons saga serves as a prime example. In order to secure regulatory approval, Kroger divested itself recently of over 413 stores to address antitrust concerns, which would be like Canada’s number one grocer Loblaw selling 354 stores prior to an acquisition. It represents a fundamentally different landscape.
According to Mark Warner, a prominent Canadian competition lawyer, Kroger is taking proactive steps to address potential FTC concerns in the U.S. They are proposing sales as remedies, effectively challenging the FTC to block the merger and leaving the decision to a judge to assess the remedy's effectiveness. This trend may become more commonplace among well-funded merging companies, particularly as antitrust enforcers become more proactive. In the past, before the Biden administration, antitrust agencies were more inclined to accept proposed remedies and approve mergers. Canada, it appears, still adheres to a similar approach.
In Canada, significant transactions have been scarce of late. The activist landscape may indeed have shifted, as Warner suggests. The most recent major deal, Sobeys' acquisition of Safeway, required a consent agreement and the sale of 23 stores – 1.5 percent of Sobeys' total operations. This pales in comparison to the rigorous oversight happening in the United States. Notably, some of those 23 stores divested by Sobeys remain closed even after a decade.
However, let us confront a stark truth. While Congress scrutinized the Kroger-Albertsons deal from its inception, few Canadians raised an eyebrow when major grocers changed hands. In Washington, antitrust concerns evolved into a highly politicized issue, compelling the involved companies to publicly acknowledge public apprehensions. Now, with food prices on the rise, Canadians are beginning to genuinely care about how the architecture of the industry influences food pricing.
One major divergence between the United States and Canada becomes evident: Lawmakers and policymakers in both nations reached a consensus many years ago that the intricacies of the food industry are too complex for the general public to fully grasp. Instead, the paramount concern of the public lies in how the industry directly affects their daily lives, particularly in terms of food affordability, access and safety. Consequently, lawmakers in the United States have been willing to proactively shoulder the responsibility of addressing these concerns on behalf of their fellow citizens.
Conversely, Canada has opted for a different approach. Many politicians have resorted to accusations of corruption and the "greedflation" campaign as their primary strategies. Regrettably, these tactics often discourage the broader public from engaging with and comprehending the intricacies of food distribution and policies.
When we assess the challenge of fostering competition within the food sector, it becomes unmistakably clear that this is a substantial obstacle confronting both nations. Yet, the fact that Canada is even contemplating emulating what France has recently undertaken – calling upon the food industry to freeze prices of 5,000 products – serves as a poignant reminder of how out of touch our lawmakers are with the workings of our own country.
If Canadians do not voice their concerns and demand change, they will ultimately receive the food industry they are willing to tolerate.