Whole Market Foods?

Why the FTC is right to block Whole Foods’ buyout of Wild Oats 28

John Mackey.

Photo: Whole Foods Market

In a high-profile exchange with Michael Pollan last summer, Whole Foods Market CEO and founder John Mackey took an avuncular approach to farmers' markets that might take business from his company.

"Whole Foods Market is committed to supporting local farmers' markets across the United States (and also in Canada and the U.K.)," he wrote.

Elsewhere, the executive has displayed a zeal to crush competition that might make his counterparts at Microsoft blush. Last spring, Mackey sent a blunt email to the Whole Foods board, explaining his intention to buy Wild Oats -- Whole Foods' only direct nationwide competitor -- for a price well above what many analysts thought Wild Oats was worth.

By taking over Wild Oats, he argued, Whole Foods would not merely be snapping up 110 fully functioning natural-foods stores across the nation. Grabbing Wild Oats would also buy Whole Foods the power to "avoid nasty price wars" in several markets, as well as "eliminate forever" the threat of a major nationwide competitor in the natural-foods space.

The Federal Trade Commission somehow got its paws on Mackey's provocative email, and is using it as the basis for a rare foray into enforcing antitrust law in the food industry. In early June, the commission sued to block Whole Foods' $565 million bid for Wild Oats, claiming the combined entity would act as a monopoly in many regional markets.

In a brief [PDF] released last week, the FTC subtly revealed that Mackey had made other, even more provocative statements about Wild Oats before the deal went down this spring. It turns out that Mackey, the CEO of a company valued at some $5.6 billion, had for six years been secretly posting on a popular internet message board, clashing with anyone who dared criticize Whole Foods or praise Wild Oats. Using the handle "Rahodeb" -- his wife's name scrambled -- Mackey regularly crossed swords with people calling themselves things like "Hog152" and "Dadajuiceboy."

As far back as 2002, "Rahodeb" was openly pining for Wild Oats' elimination, declaring that, "With the demise of Wild Oats, Whole Foods Market has no national competitors in their niche. This will accelerate their growth." By spring 2006, Mackey's alter ego could taste blood. "The end game is now under way" for Wild Oats, Rahodeb insisted: "Whole Foods is systematically destroying their viability as a business -- market by market, city by city."

Admittedly, it's hard to look away from the spectacle of a major CEO's descent into anonymous chat-room shilling. But what really interests me here is the FTC's bold decision to challenge a merger within the food industry -- after decades of standing idly by as fewer and fewer companies grabbed hold of more and more of the market.

Mackey vs. Mackey

The FTC's case against the merger can be summed up as follows: A combined Whole Foods/Wild Oats would be the only nationwide supermarket specializing in premium-priced organic groceries, with an emphasis on perishable goods (fresh produce, meat, and dairy products).

The commission acknowledges that conventional supermarkets are rushing into organics, but counters that these chains cater to a group of shoppers distinct from the Whole Foods/Wild Oats set. Core "natural foods" shoppers, the FTC argues, don't venture into Wal-Mart seeking organic milk or broccoli. They flock to Whole Foods for the experience, and they're willing to pay extra for it. Thus if Whole Foods "devoured" (the FTC's word) its only national competitor, the combined entity would be free to gouge natural-foods shoppers without fear of competition.

Mackey has openly ridiculed this claim on his blog on the Whole Foods website. In an extraordinary 14,000-word treatise (very few CEOs would comment so voluminously on a pending antitrust case), Mackey claims that assimilating Wild Oats would actually do very little to reduce the competition his company faces.

"Most of our products that we sell in our stores can now be found in every large supermarket store in every market we compete," he wrote. "Excellent supermarket companies ... have very good perishable departments that compete very favorably with our own stores and they also have very large selections of natural and organic products. Competition with Whole Foods has never been greater than it is right now and Wild Oats is only a relatively small part of that greater competition."

And Whole Foods faces fierce competition from other sources as well, Mackey went on: "Trader Joe's has very rapidly expanded by more than doubling its store base in the past five years and has entered into numerous new markets to directly compete against us."

Mackey's logic makes good sense on the surface. Sam Fromartz, author of Organic, Inc. and a seasoned Whole Foods observer, essentially echoed it on his Chews Wise blog; other business-press commentators weighed in with similar support.

However, the FTC wields a powerful weapon to bolster its case: Mackey's own pronouncements from before the Wild Oats buyout. Over and over again in its 40-plus page brief, the commission trots out Mackey himself to make the case that Whole Foods operates in a different universe from its would-be rivals among conventional supermarkets. While the FTC document doesn't specify sources for the Mackey quotes, I talked to a press rep from the commission, and he told me they come from Mackey's chat-room forays and blog, as well as internal company documents.

In one instance, the FTC quotes Mackey as claiming that, "Safeway and other conventional retailers will keep doing their thing -- trying to be all things to all people. They can't really effectively focus on Whole Foods Core Customers without abandoning 90 percent of their own customers." At another point, the FTC has Mackey boasting of Whole Foods' "authenticity, integrity, and the power of their brand with their customers. This creates strong loyalty from their customer base -- something Safeway doesn't have and likely never will have."

Nor did pre-merger Mackey seem particularly impressed with the challenges mounted by specialty-foods retailer Trader Joe's on the high end or Wal-Mart from the low end. According to the FTC, Mackey wrote in 2006 that "Wal-Mart doesn't sell high-quality perishables and neither does Trader Joe's ... That is why Whole Foods coexists so well with [Trader Joe's] and it is also why Wal-Mart isn't going to hurt Whole Foods."

Given such pronouncements -- and the FTC has gathered several, from Mackey as well as other Whole Foods execs -- the agency will likely succeed in blocking the merger. In fact, the smart money is already lining up against the deal. "We believe the FTC case against the merger appears solid and are now leaning more toward the FTC prevailing in its injunction," a stock analyst for Bear Stearns recently wrote in a note to the Wall Street powerhouse's clients.

One Buyer Doesn't Fit All

So the FTC has moved decisively to protect the sort of consumers who adore Whole Foods and disdain conventional supermarkets. Wow. In this laissez-faire age, it's remarkable when a federal agency effectively challenges any sort of corporate merger.

But in my view, the agency could have mounted a broader challenge to the merger -- one that looked not only at the interests of people who buy from Whole Foods, but also entities that sell to it, including farms.

As Barry C. Lynn showed in a luminous essay published in Harper's last year, federal authorities since the Reagan era have narrowly defined antitrust law as an instrument for protecting consumers from price gouging.

In this conception of antitrust, the government steps in only when a company, unimpeded by competitors, gains enough market power to dictate prices to consumers. And the burden is on the government to show that the company is actually using its power abusively -- that is, charging higher prices than it would under competitive circumstances.

But these days, few dominant corporations dare attempt to gouge consumers. Rather, they use their market heft to boost profitability by squeezing their suppliers -- the firms they buy products from. Known as monopsony, this form of market power involves a dominant buyer dictating terms to sellers. In a market characterized by perfect monopsony, a seller can either accept the price the buyer is willing to pay, or exit the business.

According to Lynn, U.S. antitrust theory from the 1890s to the Reagan era included robust protection from monopsony. But in recent years, he writes, "it has become a truism that antitrust law is designed to protect only the consumer." As a result, he argues, huge firms have arisen whose very business model hinges on exercising monopsony power, which they use with impunity.

Lynn's example par excellence is Wal-Mart -- a company for which Mackey, under his Rahodeb guise, once expressed effusive admiration. Lynn shows that Wal-Mart uses its vast market heft to extract all manner of concessions from suppliers, including discounts unavailable to Wal-Mart's competitors. Wal-Mart and like-minded firms use monopsony power to "dictate downward the wages and profits of the millions of people and smaller firms who make and grow what they sell."

The effects are clear, Lynn continues: "We see them in the collapsing profit margins of the firms caught in Wal-Mart's system. We see them in the fact that of Wal-Mart's top 10 suppliers in 1994, four have sought bankruptcy protection."

How does monopsony apply to Whole Foods and its attempt to buy out its only direct nationwide competitor? If Mackey is correct that conventional supermarkets can never effectively compete with Whole Foods in its core fresh offerings like meat, produce, and dairy, then Whole Foods and its lone remaining competitor will become increasingly powerful buyers of those goods from organic farmers seeking to serve local and regional markets. To protect those farmers from a single buyer wielding untoward power, the Whole Foods/Wild Oats merger should be halted.

I'd like to see the FTC use that logic to block Mackey's zeal to dominate the natural-foods market -- and then apply it to other sectors of the incredibly consolidated, monopsony-dependent food industry.

Grist food editor Tom Philpott farms and cooks at Maverick Farms, a sustainable-agriculture nonprofit and small farm in the Blue Ridge Mountains of North Carolina. Follow my Twitter feed; contact me at tphilpott[at]grist[dot]org.

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  1. elchante Posted 4:05 am
    19 Jul 2007

    What about us WFMI stockholders?I agree with your perspective to protect suppliers from a Whole Foods Market monopsony, but I was hoping to recover a stock loss and expecting the buyout of Wild Oats to at least bring Whole Foods back up to what I paid for it so I could get out with a break even or stay as a wise investment. I can't help imagine that I'm not alone in my conflict. Besides, I don't even get to shop at a Whole Foods, Wild Oats or Trader Joe's because I live in the capital city of Oregon where the natural food supermarket revolution hasn't happened. I bought WFMI as an investment because I believe in what I thought was their mission to bring natural foods supermarkets to every state in union at a fair price to both consumers and suppliers. I'm still waiting for a local natural foods supermarket of national recognition. But not unaware of my local Saturday market, my own garden, and sustainable agriculture for local organic meat. Instead of running all over town to get the best organic food, I'd love to a natural food supermarket in Salem, Oregon.
  2. Samuel Fromartz Posted 4:09 am
    19 Jul 2007

    A Closed Customer Base?Tom, as usual, an insightful post, but obviously I take issue with you on a couple of key points.
    First and most importantly: I don't view Whole Foods and Wild Oats having a lock on a particular customer. For the FTC to prevail, it will have to show that these well-defined customers don't have any alternatives.
    In organics, market research shows one-third of all Americans now buy some organic food regularly but only 8 percent are the core, buying as much as they can. Clearly 1/3 of Americans are not shopping at Whole Foods/Wild Oats, which have about 1 percent of grocery store sales. As for the core 10 percent, are they buying at Whole Foods and Wild Oats to such a degree that they have no other options?
    I don't think so. Trader Joe's and Whole Foods do have significant overlap in products and many shop at one, then the other, or both. Mackey may call them "complementary" on an Internet posting, but remember he's spinning: they compete head to head.
    Secondly, would shoppers who see prices rising at a "monopoly" (with only 15% of the organic and natural foods market) fail to seek out similar products elsewhere? I don't think so. In DC, they'd line up at Trader Joe's, as they started to do as soon as the store opened. Where did those customers switch from? Whole Foods, which is why the company publicly matched prices to compete. We have another local chain whose business model is predicated on under-cutting Whole Foods organic prices and offering more local food. I imagine there will be others too. Then on the less-organic but gourmet end we've got Balducci's and Wegmans out in the burbs. Lots of choice.
    Even in Boulder, the FTC says that Whole Foods was not hurt by the entry of Safeway's Lifestyle store but does this mean they are not competing? Or does it mean that Safeway grew the market by drawing new people in to buy similar foods?
    The FTC argument looks at this market as a static zero sum game, but actually it's the most dynamic part of the food business, growing quickly, with new entrants and new consumers who are always trying new things.
    As for monopsony, give a call to Earthbound Farm, the largest organic produce wholesaler in the country and ask if Whole Foods is their largest or only customer. When I spoke with them a few years back, they told me that they Whole Foods was not. Conventional retailers were more important and their presence has only grown since then. Their salads are in 3 out of every 4 supermarkets.
  3. sideshow1979 Posted 5:02 am
    19 Jul 2007

    ThanksGreat, great post.  Monopsony is indeed a huge problem, and I would argue that it harms consumers as well.  Consumers never even have the opportunity to purchase many types of goods as a result of monopsony practices.  The concentration of retail power has diminished consumer choice, thus skewing the benefits of markets away from innovators and toward monopsony firms.   Sky-high capital and distribution costs prevent small-scale producers of almost any good from entering supply chains.  In agriculture, this is one reason why government investment in local foods processing and distribution capacity is so crucial.  If innovation never reaches the consumer due to monopsony practices, markets will eventually destroy themselves.
  4. wren7 Posted 5:44 am
    19 Jul 2007

    From a regular Whole Foods shopperI live in Austin, TX, the headquarters of Whole Foods. We have one of their "flagship" stores downtown, and it is truly an incredible place.  It's enormous; the selection is almost overwhelming; you can buy nuts freshly roasted in the store or sit down and eat at one of about 15 stations scattered throughout the store with freshly prepared foods. It is a beautiful place.  But the prices are extremely high pretty much across the board. We do have a couple of other, much smaller natural food stores here, including two Sun Harvest stores, which are owned by Wild Oats.
    The prices at Sun Harvest are usually lower, and often much lower, than those at WF. Sun Harvest also has fantastic sales that I never see at WF, such as 25% off of all vitamins and supplements or 25% off of all body care products. If WF is allowed to take over Wild Oats, I'd be surprised if they kept the Sun Harvest stores here open, and even if they did, they would never keep these types of prices and sales. The result would be fewer choices for purchasers of natural and organic products and higher prices.
    On a different note, I was saddened after reading the (excellent) post by Tom Philpott. This was the first I've heard some of these facts about John Mackey and the apparent philosophy of Whole Foods.  I used to have a positive opinion of WF, but that just changed. It doesn't sound that different to me from Wal-Mart or Microsoft. It just wants to gobble up all of its competition and hurt its suppliers and many others in the process.  
    I hope the FTC does block this takeover. I'm amazed the FTC is even paying attention, since I don't remember it ever blocking a corporate merger or takeover (it probably has but I can't recall an example), but as Tom pointed out, Mr. Mackey gave the FTC ample ammunition with his own words.
  5. saynotopalmoil Posted 9:24 am
    19 Jul 2007

    Whole PaycheckWhole Paycheck
  6. bart laemmel Posted 12:56 pm
    19 Jul 2007

    GolfI bet John Makkey likes to play golf too.  I find the stores to be elitist and over the top.  As a green builder and energy consultant I can't beleive the amount of arrogant waste in both the WF and regular grociery stores.  If we really make a difference lets start building more smaller stores so we can walk to them.  Remember walking?

    Everytime I was in the WF in cherry creek denver I would start singing "Beautiful people" by Marylin Manson.
  7. JosephMeyer Posted 3:54 pm
    19 Jul 2007

    Goodbye to Wild OatsSo what is it, the merger will be bad because prices will go up, or because prices will go down? Or because they will remain the same? The primary result of the FTC's increasingly likely-looking success blocking WFM's acquisition of Wild Oats is that Wild Oats will continue to go broke, its employees will lose their jobs, and its assets will be picked up for pennies on the dollar by Safeway, Kroger, et al. I'm so grateful to the FTC for its protection!
  8. JosephMeyer Posted 3:58 pm
    19 Jul 2007

    Office Depot/StaplesThe FTC blocked the proposed Office Depot/Staples merger a few years ago, thereby keeping the price of printer ink cartridges artificially high.
  9. JosephMeyer Posted 4:05 pm
    19 Jul 2007

    Worked for the Soviets!That's it, in order to prevent "monopsony," lets have the government get involved with agriculture! Oh boy, I can't wait for the first "boy meets tractor" inspirational opera. Last time government invested really seriously in agriculture, millions of people starved. For one thing, they got behind Lysenko's daft genetics, i.e. the idea that acquired traits could be transmitted. Government is the ultimate "monopsony," not a defense from it. For one thing, it has guns and the ability to tax and imprison, tools which even big bad John Macky doesn't have at his disposal.
  10. JMG's avatar

    JMG Posted 1:32 am
    20 Jul 2007

    Pioneer OrganicsElchante, I believe Pioneer Organics delivers in Salem.  www.pioneerorganics.com  You already seem to recognize that the effect of the merger on the stock price is not an important factor for anti-trust approval, so I guess all I can say is "index funds."  See Vanguard.  Small investors putting money into individual stocks is not far from using the lottery to fund your retirement.
  11. rozgrist Posted 1:38 am
    20 Jul 2007

    What about food co-ops?I shop at Harvest Co-op in Cambridge, Massachusetts regularly. Their prices are competitive with WF's and there is a wide selection of items. Co-ops may not represent a large percent of the market, but they often buy from local purveyors and they offer an alternative to shopping at large chains.
  12. Rune Posted 3:43 am
    20 Jul 2007

    What is the meaning of this?I think this case has several important implications.  Moreover, what I consider to be the most important perspective in terms of environmental impact has not been discussed so far.
    First, some perspective on the issue that is already being kicked around: the restraint of trade implications for the proposed merger.  With no more knowledge of the specifics of the case than what was presented in the lead article of this thread, it appears that the FTC is intervening based on Section 7 of the Clayton Act, which prohibits mergers that would significantly lessen competition, and perhaps some miscellaneous details of the Federal Trade Commission Act.  (Note: I am not a lawyer, don't even play one on TV, but I do have a diverse and a well worn background in business and economics that has exposed me to in depth matters of many aspects of business law spanning land use to executive compensation to the legal aspects of intellectual property and marketing, that latter encompassing antitrust considerations.  So, I am an interested and widely experienced participant in these arenas, not a specialist.  Specialists have my welcome to fill in the blanks and make corrections as they see fit.)
    From this angle, the FTC must define the market before it can make the case that the merger will have a negative effect on competition in the market.  The relevant test is whether a sustained price increase, one that is not huge but enough to make consumers think twice about continuing to buy from the seller (Whole Foods), would lead to a significant amount of substitution to what another seller is offering.  If so, then the sellers to which consumers would switch are in the same product market.  If not, then the seller already has significant monopoly power.
    Based on the comments of Mackey's alter ego, WF may have significant monopoly power except in markets where Wild Oats is a competitor.  His stated intention, in internal e-mails, is to take over Wild Oats through a horizontal merger to maximize WF's concentration of market power in those remaining competitive regional markets.  (In this national case, we are concerned with an overall "product market"--actually a service market--but it is the regional markets involving Wild Oats that are keeping WF's overall product market power in the country somewhat in check.)  What the FTC needs to look at to determine whether the merger is anticompetitive is a what-if analysis of the Herfindahl-Hirschman Index to see if the result will give WF a "highly concentrated" share of its product market.  Unless Mackey can make a convincing case that WF shoppers see the Wal-Marts and Safeways of the shoppers' habitat as genuine substitutes for qualities and value presented by WF, and HHI analysis will probably find that WF already has achieved a concentrated market share and the merger will leave it with a highly concentrated share, which is to be prevented by the FTC under the law.  That's why he is suddenly claiming that the big stores that carry major national brands in a much more austere store than WF presents are somehow in fierce competition with WF, despite his blogging entries indicating just the opposite.  Without those big chains being included in WF's market, it is tough sledding to make the case that a take over of Wild Oats would not be a major anticompetitive move.
    * * *
    The FTC's case against the merger can be summed up as follows: A combined Whole Foods/Wild Oats would be the only nationwide supermarket specializing in premium-priced organic groceries, with an emphasis on perishable goods (fresh produce, meat, and dairy products).
    Yes, that does seem to be the only angle they are pursuing.  If they win, it's just a matter of an injunction blocking the merger.  But given Mackey's explicit statements indicating a strategy designed to systematically destroy his competition, as opposed to just running the tightest ship he can and letting the market respond to healthy competition, I think there is a stronger case to be made, one with criminal penalties attached.
    Section 2 of the Sherman Act makes it illegal to attempt to monopolize a market or, if there is monopoly power, to willfully acquire or maintain that power.  Usually, it is difficult to make the case that a firm is trying to monopolize a market because most firms with the wherewithal to monopolize a market are run by people sophisticated and polished enough to hide their intentions behind permissible business goals.  But Mackey is a rabid hater of all that stands in his way of total domination, including the unionization of his own employees, and he has repeatedly and very clearly stated his intentions to prevent competition.  There is no doubt that Mackey is trying to monopolize his market by destroying, and now by devouring, the competition--he said so.  And if the HHI reveals that WF has monopoly power, which Mackey's blogging entries claims to be the case, and not by accident--then it is pretty easy to prosecute him for willful acquisition and maintenance of that power.  Unlike Section 7 of the Clayton Act, these violations of the Sherman Act are felonies, with big fines and jail time available as punishments for individuals convicted of them.
    I suspect the DOJ, which is probably in the most corrupt and, now, due to rats jumping ship, decrepit state it has ever been in, will not lift a finger to uphold the Sherman Act, even though it appears to me to be more or less a slam dunk case.  In addition to being in disarray, the DoJ under Bush and Cheney has been a partner in such crimes, first and foremost by helping players in the energy companies who were in on the energy policy meetings Cheney held in 2001 to escape justice for rigging the price of energy, which created blackouts and price gouging in California.  If they were to go after Mackey, it would only raise awareness of the laws and how they are not being upheld in the many cases in which Bush and Cheney cronies are just as guilty, if not quite so stupid as to explicitly state their intention to break the law in public (although internal energy trader communications do nail them just as effectively as Mackey has hung himself).
    * * *
    But enough legal stuff.  This is an environmental site.  The environmental angle, here, is that the whole arrangement of the law promotes low, low price so consumers will shop till they drop.  And this is regarded as a good thing.  But from an environmental stand point, squeezing everyone to do their damndest to extract as much stuff out of the Earth as possible and encouraging--hell, not just encouraging, but defining--people to be consumers above all other human virtues and values (such as well paid workers or careful caretakers of the land) is problematic, to say the least.
    I need to leave it there for now, but I am interested in comments on that perspective.  It's clear that Mackey is setting out to crush competition so he can build his business empire without cutting his employees or suppliers in on any more of the pretty penny he extracts from mostly upscale shoppers, but what do his monopolistic and monopsonistic tendencies mean for the environment, especially when those same tendencies are repeated in other, larger businesses and industries?
  13. Jon Rynn's avatar

    Jon Rynn Posted 4:18 am
    20 Jul 2007

    Whole Foods excluded Trader Joe's......here in Evanston, Illinois, or so I am told -- I suppose they had some clout with the city.
  14. Samuel Fromartz Posted 4:55 am
    20 Jul 2007

    Heavy Reliance on MackeyThe argument that WF is a monopolist relies heavily on John Mackey's assessment, but is he right? And is his opinion relevant. There's a pretty steady posting on this issue going on over at http://www.truthonthemarket.com. I pulled a couple of relevant quotes from Geoffrey Manne, an asst prof of law at Lewis & Clark law school.



    ...when you're looking at marketing materials and reports to the board to identify anticompetitive intent (hmmm.  I didn't know intent was relevant in merger cases . . . .) through "fighting words" and "smoking guns," you're barking up the wrong tree.  It is little or no evidence of likely anticompetitive effect that Whole Food's outspoken CEO claims that purchasing Wild Oats will remove "forever or almost forever" the threat to Whole Food's market.  I'm delighted that he believes so strongly in his product and in the strength of his brand.  I think it's great that he can find ways to differentiate Trader Joe's, Safeway, Kroger, the local produce stand and Wal-Mart from his stores  (He might also have pointed out that they are all found in different locations, have different names and sell a different mix of products.  Some don't even offer plastic bags to take your groceries home in.  Now that's the sort of differnetiation the FTC can make a market out of!).  But this is not antitrust-relevant evidence.



    And further:



    Whole Foods and Wild Oats may view themselves as operating in a different world than Wal-Mart.  But their self-characterization is largely irrelevant.  What matters is whether customers who shop at Whole Foods would shop elsewhere for substitute products if Whole Food's prices rose too much.  The implicit notion that the availability of organic foods at Wal-Mart (to say nothing of pretty much every other grocery store in the US today!) exerts little or no competitive pressure on prices at Whole Foods seems facially silly.  

  15. Tom Philpott's avatar

    Tom Philpott Posted 7:38 am
    20 Jul 2007

    Response to SamSam,

    I agree that the drive into organics by Wal-Mart, etc., makes the FTC's argument a little shaky. I'm genuinely surprised by the move, coming from an agency that stood idly by when hog-packing behemoth Smithfield picked off its largest rival, Premium Standard Farms. Of course, that deal was much more likely to push hog prices down for farmers than it was to push pork prices up for consumers; and as I wrote above, monopsony doesn't concern the various federal agencies that monitor antitrust.
    Nevertheless, the FTC has come up with an impressive list of quotes from both Whole Foods and Wild Oats execs, both in marketing materials and internal documents, claiming that the "super natural" market operates in a different universe than regular retail.
    Did the execs believe that, or was it just spin? Well, the  deal was predicated on the assumption that the natural market is fundamentally different. Mackey told his board he wanted to buy Wild Oats to keep a rival like Safeway from snapping it up. But why would Safeway do so, rather than merely beefing up fresh organic offerings in its existing stores?
    He also said the merger would help end "nasty price wars" in key markets. How could it do so, if Safeway or Wal-Mart were just as able to start one?
    Moreover, if Mackey was just spinning, then , if  why did he pay a 23 percent premium for Wild Oats?
    The Bear Stearns analyst quoted in my piece also wrote that Whole Foods "seemed obsessed with running Wild Oats out of business and that they seek to circumvent that process by taking them out and essentially dismantling the company." Evidently, Mackey thought it was worth nearly half a billion of his shareholder's money to do so.
    At the very least, Whole Foods' lawyers will be in the dodgy position of arguing that Mackey was in fact wrong about the natural foods market, that in fact it does compete directly with the likes of Wal-Mart, Safeway,and Trader Joes, and that Wild Oats was not worth the premium Mackey placed on it. Essentially, the case for Whole Foods hinges on proving Mackey's incompetence.
    But I'm not certain Mackey was in fact wrong.

    I myself will shop at Whole Foods for certain things, but I'd never buy food at Wal-Mart. I've found things worth buying in Whole Foods' produce , meat and dairy sections, but the produce you find in the tiny organic sections of regular supermarket chains always looks shriveled up and  worse for the wear of a long haul. As for Trader Joe's, as Mackey himself has said, they don't really do fresh food, and thus don't  compete directly (70 percent of Whole Foods' revenue comes from perishables.)
    Are core Whole Foods shoppers really tempted to go check out the cheap organic produce at Wal-Mart? Doubtful. Give them choices between two natural foods places, though, and they might start choosing based on price.
    More interestingly, in the 19 markets where they go head to head, if Whole Foods and Wild Oats  started competing to see which was going to be the more robust source of local organic produce, then you might see rising farmgate prices for organic goods produced in the region -- which would have all sorts of positive knowck-on effects.
    It's doubtful that Safeway or Wal-Mart would be seen by consumers as a credible rival to Whole Foods as a source for locally produced goods.
  16. Samuel Fromartz Posted 9:15 am
    20 Jul 2007

    RebutTom, these are all good points. But for the FTC, to prove its case, it must show that you will continue to shop at Whole Foods, even if they raise prices and reduce the quality of their stores. (And further, that no one will reasonably try to come into the market to compete with them once they do so.) If that were the case, would you still shop there, or make more effort to seek out like products elsewhere?
    I agree, Safeway is not as good on fresh produce, at least our Safeway in DC, but I have seen some where the quality is quite high. And perhaps being in DC, we have more choices, including Costco for cheap organics. Wegmans is stellar, on quality and price for perishables.
    There is a good chance though these arguments will never get played out, for I've read elsewhere that the deal will likely be scuttled if the judge grants the preliminary injunction, which is quite common in these cases. If that happens, we are unlikely to see the substance of WFM's legal rebuttal and just be left with Mackey's own contradictory statements about competitors on his own blog as as Rehodeb...

  17. Rune Posted 1:50 am
    21 Jul 2007

    Rebuttal to rebutSamuel, immediately prior to your post with the quotes from the the prof. at Lewis and Clark Law School, I had already explained all that he did, and more.  Go have a look.
    True, intent is not a measure of guilt in the FTC's action against Whole Foods based on the Clayton Act.  What matters in that case is a technical measure of market concentration, most likely based on the HHI, which I explained and linked, above.
    Where intent is relevant, and where there is a slam dunk case to be made, is in criminal prosecution of Mackey, both for willfully attempting to gain a monopoly (by systematically destroying, and now absorbing, Wild Oats, according to his own writings) and for willfully attempting to maintain monopoly power to the extent he believes he has it.  As I explained above, those are both felonies under the Sherman Act.  And regardless of the outcome of the FTC's action, that is a case that could and, in my opinion, should be made against Mackey.
    No, you are incorrect, the FTC does not need to demonstrate that Tom or anyone else will continue to shop at Whole Foods if it raises (and sustains) its prices.  As I explained, that level of analysis is necessary to define the relevant product market to be analyzed by the HHI.  It is only of secondary interest to determining market concentration in extreme cases where there is virtually no competition.
    My knowledge of many Whole Foods shoppers in my area, of which I am one on occasion, suggests that even with a significant rise in prices, they are likely to keep shopping at Whole Foods, they just might scale back a little on their overall selection of purchases and pick up a few more staples and sundry items at Trader Joes, which does not pose serious competition to WF is most product categories.  Again, see above.
    And finally, there is a significant question about the environmental consequences of these laws meant to promote maximum consumer value by going after anyone in the supply chain who maneuvers to a position in which they can charge maximum economic rents on the natural and human resources that go into turning nature into packaged goods and disposable items, among other things.  I am still waiting for some meaningful thoughts about that.  I have a few of my own to share, but I am not seeing any point at present as I get the notion no one would bother to read them.
  18. mihan's avatar

    mihan Posted 11:50 pm
    21 Jul 2007

    Whole Foods shoppersI don't shop at WF, but some of my best friends do. Some of them shop there (and not a local coop) because of convenience or (perceived?) lower cost (e.g., in the Boston area). But many people do because they really don't have a choice: if you want organic groceries in many urban areas (e.g., in Chicago)... WF it is.
    Frankly, many of them just don't care about WF's appalling labor record. I just talked with a friend I met through the labor movement, and he gushed about WF. It was weird.
  19. Tom Philpott's avatar

    Tom Philpott Posted 1:24 am
    22 Jul 2007

    For the record......while i think it's important to maintain robust competition in fod markets, and thus i support the FTC's case, i hope the real nationwide competition to Whole Foods comes not from clones like Wild Oats, but rather locally and when possible farmer-owned cooperatives. Viva Park Slope Food Coop, Wheatsville Food Coop, and all the others that thrive in the shadow of the behemoth. As well as all the farmers markets and CSAs.
  20. greentrain Posted 1:36 am
    23 Jul 2007

    Unfed Red'sTo suggest that government involvement in agriculture causes citizens to starve sounds  more like McCarthyism than it does a legitimate libertarian stance.  The Soviets starved because the country lacked the proper infrastrucure to deliver food to its people across its huge land mass.  Produce rotted in railcars at the end of unfinished lines.  While this does point to serious flaws in the Soviet regime, it does not necessarily villify government controlled agriculture.  In North America, there are already many quota systems (for dairy and eggs) and subsidies in place to ensure that food is always afforadable for citizens.  I think boosting this control to a level which would also ensure that our food is mostly supplied from local growers and that these foods are as healthy and affordable as possible sounds more like agricultural utopia than iron curtain idiocy.
  21. wayneluke Posted 2:30 am
    23 Jul 2007

    Limited Choice.Many areas don't have options for co-ops, Whole Foods or Wild Oats. In my area the choice for organics include Trader Joe's, a single locally owned store with limited selection and the almost non-existent organic selections at mega-stores like Albertson's and Wal-mart.
    We used to have a thriving agricultural market in the region but it has dwindled down to a few orchards (peaches, apricots, plums, cherries and apples, and almonds) scattered about the region. The rest of the regional agriculture is now devoted to alfalfa or agribusiness growing onions, potatoes and carrots. 10s of thousands of acres of onions, potatoes, and carrots.
    It is rumored that Whole Foods will be opening up a store in a nearby city. I am sure they will be welcomed with open arms by people looking for more organic choices locally.
  22. ThePanelist Posted 6:06 am
    23 Jul 2007

    Whole Foods CEO Not Very EthicalCheck out The Panelist's criticism of John Mackey's Yahoo investment forum comments.
  23. Samuel Fromartz Posted 10:39 am
    23 Jul 2007

    WedgeDon't forget the Wedge and other co-ops in the Twin Cities! Highly successful and a great store. They compete head-to-head with WFM and win.
  24. JosephMeyer Posted 3:02 pm
    23 Jul 2007

    WF's "appalling" labor record.What is most appalling? Consistently ranking near the top of Fortune's list of the top 100 companies to work for (#5 this year)? The fact that only one of their stores has gone union, and voted the union out the next year (we're probably getting warmer)? Or the fact that many former disgruntled Wild Oats employees now work for Whole Foods?
  25. JosephMeyer Posted 3:20 pm
    23 Jul 2007

    Unfed Reds reduxHmm...the Venona cables, decrypted communications between Soviet spymasters and their agents in the US government, were declassified and published in the 80s, and make it clear that everyone Joe McCarthy fingered was indeed a Soviet spy. Check it out. So I'll take the charge of "McCarthyism" as a compliment.
    The parts of the USSR where millions starved had been able to feed themselves before they were collectivized. How Federal domination is supposed to lead to more local produce is beyond me--especially if lack of infrastrucure for a huge land mass was the Soviet difficulty! The food pyramid is one of my favorite federal contributions to nutrition.
  26. jbschott Posted 5:27 am
    24 Jul 2007

    Mackey in love with WalmartDid you Mackey's quote about Walmart?  I'm ready to put it on a sign and stand in front of their doors in Ann Arbor so people know the truth.  
    "I probably admire Wal-Mart more than any other company in the world (except for maybe Whole Foods!). What a great, great company! Wal-Mart has single handedly driven down retail prices across America. They have improved the standard of living for millions and millions of American people. Also Wal-Mart is crushing the parasitical unions across America. I love Wal-Mart!"  
    http://messages.finance.yahoo.com/Stocks_%28A_to_Z%29/Sto ...

  27. lmwolf Posted 1:14 am
    25 Jul 2007

    Whole Foods and greedWell folks, my post is really simple, I am not an economics guru, nor am I into the intricacies and vagaries of anti-trust laws. I do know that biodiversity has worked for millions of years in nature..a diversity of places for people to get what they need works too--keeps prices reasonable, and spreads the wealth around. There used to be three major players in the organic grocery field..then there were two, sadly there may soon be only one. I want a food supply that is organic, safe, sustainably/locally grown, realistically priced (trans: take away corporate/agribiz grow-for-export subsidies to create a level growing field). I want some choices as to where I go to buy that food. How sad, perverse and shamefull to see rampant greed touted so casually. Why did Earthbound Farm run all of the smaller produce growers off the field. WF makes lots of $, why do these people need ALL the money?
  28. amc89 Posted 3:27 am
    25 Jul 2007

    Wild Oats, I'll miss youI really liked the Wild Oats I shopped with when I lived in Utah.  I shop at Whole Foods mostly, since better selection of vegetarian/vegan foods than any other store, as well as the farmer's market during the summer. Though I don't like supporting a monopoly, there aren't many alternavites, unless I want to drive 15 miles to the other closest natural food store.

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