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Thursday, December 7, 2023
Courthouse News Service
Thursday, December 7, 2023 | Back issues
Courthouse News Service Courthouse News Service

Trojan Condom Maker Can’t Dodge FTC Probe

(CN) - The Federal Trade Commission can force the makers of Trojan condoms to comply with a subpoena and antitrust civil investigation, the D.C. Circuit ruled.

Church & Dwight Co. has allegedly used bundling and other "exclusionary practices" to maintain a monopoly in the distribution of Trojan condoms in the United States, violating Section 5 of the Federal Trade Commission Act and the Sherman Act, according to the FTC.

Retailers that buy Trojan bundles allegedly get a rebate on other Church & Dwight products, according to the percentage of shelf or display space dedicated to its condoms.

The FTC's subpoena asks for documents related to Church & Dwight's sales and distribution of its products. Though Church & Dwight has released information concerning cost, pricing, production and sales of its condoms, it has withheld that data about its other products.

After a Washington federal judge ordered Church & Dwight to comply with the subpoena and civil investigative demand (CID), the manufacturer appealed to the D.C. Circuit.

Church & Dwight said the scope should not cover "irrelevant" products such as toothpaste, cat litter, baking soda and detergents.

A three-judge panel from that court was unsympathetic, however, to claims that "other products" required under the subpoena referred only to condom-related products.

"Under the commission's interpretation, the information concerning products other than condoms is unquestionably relevant to its investigation, and the district court was correct to enforce the subpoena and the CID," Judge David Ginsburg wrote for the panel.

"We hold, therefore, the resolution lawfully encompasses in investigation into whether Church & Dwight has bundled discounts for condoms and other products in order to acquire or maintain a monopoly in the market for condoms in the United States," he added.

Mark Hegedus represented the FTC in this matter, while Church & Dwight was represented by Carl Hittinger.

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