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- [00:00]
Shree Rajagopalan
Chain Drug Review's focus is on reaching the key decision makers across all retail channels, delivering comprehensive coverage of the latest shopping trends and in depth category analysis on health, beauty, over the counter products and wellness. Whether it's the latest trends, emerging technologies, or strategies for adapting to new consumer behaviors, Mass Market retailers deliver the critical information retailers need to navigate this dynamic environment. To subscribe to the newsletters of CDR and mmr, simply follow the hyperlinks in the digital liner notes of this episode. Chain Drug Review and Mass Market Retailers are published by Retail Media iq.
- [00:40]
Brandon Nutter
Hi, my name is Brandon Nutter. I'm CTO and Co founder here at ampt.
- [00:45]
Steve Pett
Hi, I'm Steve Pett. I'm an antitrust lawyer at Gibson Dunn and you're listening to CPG Guys Podcast.
- [00:53]
Shree Rajagopalan
Welcome to the CPG Guys Podcast. Your host Shree Rajagopalan and Peter Vi explore how brands and retailers engage consumers in an increasingly digitally driven world. And now, here are the CPG Guys.
- [01:12]
Peter V
Hello and welcome to this episode of the CPG Guys Podcast. I'm of course Sree, co founder, co host of the CPG Guys and co founder and partner of ThinkBlue Consulting. As builders, connectors and amplifiers, we shape the future of commerce to drive your growth. To get in touch, simply reach out to me at sri@thinkblueconsulting co. Note that's thinkblueconsulting.co not.com please listen to my older daughter Rhea Raj's music www.riaraj.com that's R H E A R A J and a new song, Hot Couture which has now been out over a month. My younger daughter Lara Raj is a member of the Geffen Records universal music group Cat's Eye. Their hit single Touch is over 275 million plays on Spotify, over half a billion on all streaming platforms. At the time of this recording. The new single Gnarly should have been released on 30th April. Their followers are now in the multi millions. Katsa is over 4 million on Instagram. TikTok. You add those numbers, they're in the tens of millions collectively as a group. Joining me of course today is my fellow co founder Peter Vs Bond who's actually a little unhappy after a recent visit to Chicago and his watching of the Dodgers getting swept by the Cubs like swept swept like a broom under the carpet and judges hitting 426 just to be noted at this point he'll talk about who's got the latest championship when I remind him Yankees have 27 championships. But let's go through the boilerplate. Of course. When he's not co hosting the podcast, he serves as head of industry and client engagement at Flywheel, the commerce acceleration division of Omnicom. Peter, how you doing? I know it's rough. I felt that way at the World series. It's one series, 125 odd games to go. Thoughts?
- [02:56]
Shree Rajagopalan
Sri, what happened to judges long ball? He's not in any home runs. What's the problem here? I mean, seriously, I thought that's why they're paying him the big bucks.
- [03:04]
Peter V
Yeah, we're depressed. A.426 batting average after 35 games. That's got to be horrible.
- [03:09]
Shree Rajagopalan
He's like double the Mendoza line. He's hitting so well. Sheree, what do you think of that? What do you think of my new CPT guys hockey jersey? Is this not truly. Open the door.
- [03:19]
Peter V
What's the number you got on the back?
- [03:21]
Shree Rajagopalan
It's 40. It's 42 for Jackie Robinson. But Sri, would you not classify this as truly haute couture? Is this not style?
- [03:30]
Peter V
There we go.
- [03:31]
Shree Rajagopalan
There we go.
- [03:32]
Peter V
There we go.
- [03:32]
Shree Rajagopalan
Good to be with you, brother. Now the only 42 I know is.
- [03:37]
Peter V
Mariano Rivera, the greatest closer of all time.
- [03:40]
Shree Rajagopalan
Sorry. No, no. Correct me If I'm wrong, Sree. April 15th. Is that Mariano Rivera Day?
- [03:49]
Peter V
Less than one yacht. Less than one yacht.
- [03:51]
Shree Rajagopalan
Jackie. Jackie Robinson day. Okay, Sree, now you sound baseball podcast.
- [03:56]
Peter V
Or is this a podcast about the omnichannel?
- [03:59]
Shree Rajagopalan
Let's talk a little bit on Omnichannel because according to my my tracking you on your your fine friends on your iPhone, you're down in in Palm Beach, Florida. What's going on down there, sree?
- [04:11]
Peter V
Beautiful weather, 85 degrees. You know, I wanted to make sure I can have a cocktail with an umbrella in it. Beautiful. Beautiful colored. Some people.
- [04:18]
Shree Rajagopalan
Did you say mocktail? I think you said mocktail.
- [04:21]
Peter V
All right, fine. Mark Taylor. Now I'm down at nacds. You know, I'm here with Parag, my partner from Think Blue Consulting. We'll be spending time with brands, retailers, service providers. Who's who in the industry is here of course on more on the healthcare, personal care and home care side. And we look forward jam packed agenda next 48 hours for Parag and me until we are back out Monday. I'm headed to Korea. Parag is headed back to Jersey. His daughter has a a huge reception that she'll be part of and until then we have something like 17 meetings in 48 hour shootout. So looking forward to that. But now, anyway, before we get to our guests over here, let's ask you to consider following us on the Apple podcast and do leave us a rating. The rating tells us how we're doing as a podcast. The review actually tells us we're having the right conversations with the right guest, AKA the quality of this podcast. And now, drumroll, please. Peter. To the main events. Today's guest joined me for a discussion on the changing omnichannel retail landscape. While many brands have made significant inroads into their online strategies, outdated policies. Yeah, like 1985. Isn't that a song? Like 1985. Like outdated policies and the fear of Robinson Pacman violation or what can be offered online at what retail and what can legally be shown and advertise online holds banks back from sales, promotions and competitive advertising. I'm getting PTSD from my days at kenbu, my days at Revlon, and then my days at General Mills, having the conversation with my teams, as not just my teams, but also with retailers on pricing online. Like, seriously, I hope today's dialogue kind of throws some shade on 1985 policies which just don't make sense. But wait a minute. That's how half of brands and retailers are. So hopefully today will shade some light and we can get behind the curtains on what the future holds and always doing what. What is our most important responsibility, brand, retailer or service provider in this industry, which is putting the shopper first, which we don't do often enough. So who's joining me for the conversation today? We have two guests, Brandon Nutter, CTO of amped, a platform that connects with some of the largest brands in the world and partners with them to deliver innovative online advertising to enable promotional showcases to the shopper. Also joining me is Steve Pat and associate of Gibson Dunn, and a member of the firm's antitrust and competition practice group. He works with clients on M and A FTC aspects and compliance, including Robinson Pacman. Love me some FTC aspect. So we're going to jump into all of that. Join me and welcome both Brandon Nutter and Steve to the CPG guys. Brandon, Steve, welcome to the CPG guys. How you doing?
- [07:01]
Brandon Nutter
Great, thanks. Thanks for having us. Big fan of the podcast.
- [07:05]
Steve Pett
Yeah, likewise. Thank you. Really excited to be on today.
- [07:08]
Peter V
I bet you all didn't know that this is a baseball podcast and we just had you here for fun. But before we start our questions, could you both take a minute each? And let's make this brief and short. Describe your respective companies and your roles there. Brandon, how about you go first.
- [07:22]
Brandon Nutter
Great. Yeah. So we're an advertising technology platform. And so essentially what we do is we connect marketing channels to marketplaces. And the whole name of the game is to have attribution so you can measure your advertising roi. And as you said, sri really focusing on the shopper journey, really shortening that path to purchase to make a delightful shopper journey for all of our shoppers and consumers for CPG brands.
- [07:49]
Steve Pett
Great. And so, as you mentioned, I'm an antitrust lawyer at the law firm Gibson Dunn in Washington, D.C. my practice is focused on counseling clients on the antitrust aspects of mergers and acquisitions. I do antitrust litigation and I also counsel on a wide range of other antitrust issues, including, especially in recent years, compliance with the Robinson Patman Act. Before I was in private practice, I also worked at the Federal Trade Commission where I worked on teams investigating proposed mergers and acquisitions and other potentially anti competitive business practices. And I also just wanted to add a quick disclaimer here at the outset that the views and opinions I express today as we're speaking are my own and do not necessarily reflect those of my law firm or any of its clients. And while we'll be discussing some interesting legal issues today, none of what I say should be taken as legal advice. So anyone who has questions about RPA compliance issues should speak to their own counsel who will be able to consider their specific circumstances. So thanks for indulging that and I'll kick it back to you.
- [09:00]
Peter V
Thank you, gentlemen. Of course, we'll include links to your company's pages, your profiles on LinkedIn in the digital line, notes of this episode. Over to our conversation now. And Brandon, I'm going to kick it off with you with my favorite PTSD word, the RPA policy. It holds brands back for sure from being able to do promotion execution in a way that they should be able to do online, especially that pricing issue. In your observation, can you talk to us about why it holds brands back? And is that where to buy becomes a serious challenge if you can't really show the promotional value? Talk to us about it.
- [09:37]
Brandon Nutter
Yeah, definitely. So it's interesting. The, the Robson Patman act is all about fair and equitable or fair and justifiable. And really the heart of what this act is doing is making sure that your price, your promotions, your deals are fair and justifiable across all your retailers that you're working with. And the idea is to really protect the smaller retailers against the larger retailers. And if you think about promotions and advertising, brands are spending hundreds of millions of dollars to take Traffic from search and social and they bring them to retailers where shoppers can buy. And what's happened today and what we've seen out in industry is that there's this whole segment of category of software that's created called where to Buy Solutions. And this is the solution right now or the proposed solution to Robinson Patman to be fair and equitable. So for the shopper, what this means is that they see a product that they want, for instance, on Instagram, they click it and now they instantly are brought to another landing page where they can't buy and where they have seven more decisions across which retailers they want to pick from, whether it's location, type and really the shoppers thinking I just want to buy right now. And so this is the proposed solution right now to be Robinson Patman compliant, fair and equitable. But really what happens and what we're seeing out in industry is CPG brands are really focusing on sales, they want to move products. And so if you have a hard, complex shopper journey, the shopper doesn't buy, the brand doesn't get that feedback on which advertising is actually working. And in the end what ends up happening is this solution was just created to be compliant. So what we're really thinking about today and talking about is how can you use kind of the next evolution of strategies to really make a delightful shopper journey where you can bring a shopper directly from the advertisement to the retailer and still be RPA compliant.
- [11:49]
Peter V
To me, who has been in a commercial sales role on the brand side for a long time, I've complied with Robinson Pacman because I've been asked to. And the word fair and equitable has been thrown at me all the time. I'm not an attorney, I don't have that background and I can't explain the bitter depths of it. But I know enough about the Robinson Pacman act. The part that's mind boggling and drives me crazy to the day is here's how people get around it. You have fetch rewards, you have ibotta, you have digital coupons, you have loyalty based redemptions. A single transaction can be discounted by 50, 75% up. Way above and beyond from a rewards perspective, incentives perspective, and finally what the consumer pays. I'm a loyal, a very loyal shopper at a certain drug chain outlet. I rarely pay more than 20, 25% of the actual EDLP price at the store or online after going through all my redemptions and I'm getting the value anyway. It seems so unfair that you can do all of this, but online you can't show it. So it just 1985. Here we go. Let's sing the song. Hold hands and sing the song together.
- [12:57]
Shree Rajagopalan
I hear you, Sri. Hey, Steve. Welcome to the podcast. We're glad to have you. I hope the cherry blossoms are. Are still in bloom down in D.C.
- [13:08]
Steve Pett
Yeah, dying down there.
- [13:10]
Shree Rajagopalan
I know you're just past season. Me, I'm just still waiting for my azaleas to bloom. It's been cold up here in the Northeast. Let me start by saying this. When I got into the CPG industry low so many decades ago, Robinson Patman was something that was always whispered about, talked about, feared, but not necessarily completely understood. So why don't you give us a little background. What's the history of, of how RPA came about and how often do you actually encounter it? And have you seen it actually enforced? Is it more of just like this big, scary deterrent, or is it actually a hammer that the government will wield on occasion? Like, what's the deal with this?
- [13:50]
Steve Pett
Great question. So let me step back and give a little bit of a context on the rpa, which I think, as you said, is going to give some, you know, inform some of the issues we'll be talking about. So there are three sections of the RPA that get the most attention. The first is section 2A, which is really the heart of the RPA. And the section 2A prohibits certain types of price discrimination. That's sort of the classic form of price discrimination where, you know, a seller is charging one customer one price and a similarly situated customer a different price for the same product. But that's not really what we're talking about today. So, at least for purposes of this conversation, what we're interested in. Interested in is in the types of RPA compliance issues that can arise when CPG companies are deciding how to allocate their advertising and their promotional spend across their retailer partners. So these issues implicate different sections of the RPA, specifically sections 2D and 2E, which prohibit a brand from providing promotional payments or services to retailers unless those payments or services are made available to all competing retailers on proportionally equal terms. So that's kind of a mouthful. And that's why everyone's kind of scared of the Robinson Patent act when it comes up, because it's complex, it's complicated, and often is not intuitive. So let's pause on the section 2D and 2E for a moment and think about what these provisions actually do and what they don't prohibit. Because again, in my Experience, they are pretty often misunderstood. Sections 2D and 2E do not require a seller to provide the exact same promotional opportunities to all customers. They require only that a seller make promotional opportunities available to all competing customers on proportionally equal terms. The amount or form of the promotions do not need to be uniform across all customers as long as they are reasonably proportionate. So there may be cases where a customer can't, you know, from a practical perspective, take advantage of a given promotion. So for example, because the customer does not have the technical ability to run a given promotion in a particular form, in those cases the brand can mitigate any RPA risk by offering the customer, you know, a reasonable, or what's sometimes called a functional alternative promotion, which is to say, you know, a promotion in a form that the customer can actually take advantage of or make use of. So we'll get into this more as we go, but the RPA actually gives brands a good deal of latitude and how to stay compliant when implementing their promotional strategies across their, their retailer customer base.
- [16:50]
Peter V
When it has come down to trade allowances, there are several retailers with many stores, large volumes of stores, and several retailers with smaller stores, super regionals, regionals, etc. And history and time immemorial, the more someone buys, you can allow volume discounting, better trade rates at the end of the day. So it's just again, in 1985, whenever this was. Do you know when it was created, Steve? When was the Robinson path?
- [17:17]
Steve Pett
Yeah, it was 1936, during the great Depression.
- [17:20]
Peter V
Superman. I'm sure nobody had, I'm sure nobody had 4700 stores leave alone 30.
- [17:26]
Steve Pett
Yeah, now I was just going to say this. This predated the no digital, no loyalty.
- [17:31]
Peter V
No frequent shopper cards, definitely no ibotta shop. That list can go on and on. But Steve, one big change. Now we have a new leader in the house and love me some FTC now. So with the new administration, it's kind of clear, at least visually and verbally. It appears they're moving aggressively on cutting down business barriers, at least visually and verbally. What are you guys anticipating? Are you seeing any such, Is there any truth to what I'm saying whatsoever?
- [18:03]
Steve Pett
Yeah, I think there is. And I'll just preface this by saying this is my favorite topic, talking about sort of the changing FTC and enforcement landscape. So let me, let me just give you a little bit of the history of the, you know, what RPA enforcement has looked at, looked like and where we're headed going forward. So when thinking about RPA risk, I think it's really important for CPG companies and their lawyers to think about what the enforcement landscape looks like. Until very recently, as I'm sure you guys know, the RPA had been almost completely ignored by the ftc. The FTC is the agency that historically has been the only one that has enforced the Robinson Patman Act. So that has been the status quo for decades. And it has been especially true for the sections of the RPA that we're talking about today. So prior to this year, 2025, the FTC had not brought a case under sections 2D or 2E since before I was born, 1988. So almost all of the RPA action over the last few decades has come from private lawsuits, which aren't unheard of, but aren't super common either. The FTC's posture toward the RPA changed pretty dramatically in 2020 when Biden took office and he appointed Lina Khan as FTC chair. The Khan FTC announced very early on that they intended to revive enforcement of the rpa. And throughout Biden's term, there were reports that the FTC had opened up a handful of RPA investigations. But the FTC didn't actually bring its first RPA lawsuit until this past December, actually, when it sued Southern Glazers, which you guys may know is the, you know, the largest US Distributor of wine and spirits. And this was a classic price discrimination case. It was brought under section 2A. It didn't involve any allegations of discriminatory promotions. This was a straightforward price discrimination case. But then, as you also may know, there was another lawsuit. So on the very last day of Business Day of the Biden administration. So we're talking January 17th, the Friday before inauguration, when Lina Khan was literally on her way out the door of the ftc. The FTC filed a second RPA lawsuit, and this time it was against Pepsi. This case did involve allegations of discriminatory promotions, and it was brought under sections 2D and 2E. I actually represent Pepsi in this lawsuit, so I'll need to be careful about what I say about it. But to me, what's really interesting about both of these FTC lawsuits were the dissenting statements issued by the two Republican FTC commissioners. Because these dissents, you know, to your point, Shree, give us, I think, some important hints about what RPA enforcement will look like for at least the next four years, while, while Trump is in office. In the dissents, the two Republican commissioners who are now in the majority at the ftc, to be clear, they didn't completely foreclose the possibility of RPA enforcement. But they did set a pretty high bar for any enforcement. In particular, what they said was that they would only bring RPA cases where the FTC could show real harm to competition as a whole rather than simply harm to competitors. And that's a big deal because the rpa, unlike all other antitrust statutes, arguably doesn't always require a showing of actual harm to competition as a whole in order for a defendant to be liable. So the defense, the, excuse me, the dissents by the Republican commissioner, the Republican commissioners were particularly strident in the Pepsi case, which I've been working on, which and in that case, the Republican commissioners opposed the bringing of that case, both on substantive and procedural grounds. Just to give a little bit of color, Commissioner Melissa Hollio, she wrote a dissent in which she called the Pepsi lawsuit the worst case that she had seen during her time as a commissioner. And those are her direct words. And she said the FTC's complaint was so bad that sending the FTC staff to court to litigate the case was again, and I quote, like sending a lamb to the slaughter. And Commissioner Andrew Ferguson, who is now, as you may know, is the FTC chairman and is making some of those public pronouncements that you're referring to sri, he said at the time that this case was brought that the decision to file the Pepsi case right before the presidential inauguration was again, to quote him, the single most brazen assertion of raw political power I have witnessed during my time as a commissioner. So, you know, if you're looking for some good reading, I mean, these are just some snippets that I just jotted down before this. But this is some really good reading and entertaining reading and, and I think gives you a sense of what this looks like going forward. So in terms of practical takeaways from these dissents, from these enforcement actions, what should you be thinking about if you're a CPG company trying to stay on the right side of the law? So I think a couple of things. It's clear that the current FTC leadership hasn't ruled out RPA enforcement altogether, but they have set a high standard for themselves in terms of what cases they could consider bringing. And with RPA investigations and litigations being so time intensive and resource intensive, my own view is that at the end of the day, we are going to see very little if any RPA enforcement actions from this FTC, especially considering the FTC's well reported, increasingly limited resources and as well as, you know, the other enforcement priorities that the Current FTC chairman has been very vocal about. So, but this isn't to say that, you know, companies can, you know, freely ignore the RPA either. So obviously the law remains on the books and, you know, the risk of private litigation is always present. So I think, you know, best practice for CPG companies will continue to be to take reasonable steps to ensure compliance. But at the same time, it's also reasonable for companies to calibrate their compliance efforts to the level of risk that is present. And in the current environment, the level of risk will be fairly low in most cases. And again, that is particularly true when we're Talking about sections 2D and 2E of the RPA, where cases are relatively rare. You know, private cases, again, government cases, almost unheard of, private cases, relatively rare. And even the successful cases almost never result in an award of monetary damages against the defendant. So I think the sort of upper bound on the potential negative consequences from violating sections 2D and E is fairly low. So I think it's reasonable and appropriate for CPG companies to consider this risk landscape when thinking about their RPA compliance.
- [25:57]
Peter V
My frustration here is coming from antiquated policies and laws which haven't caught up with the recent times. But you're vocally expressing frustration and part of a joint force here that's asking for change to do the right thing here as opposed to doing something from, gosh, 90 years ago.
- [26:15]
Shree Rajagopalan
Sheree, it seems to me like they should rename this case the Pepsi Challenge. You like that 70s reference.
- [26:21]
Peter V
Not bad, huh?
- [26:22]
Shree Rajagopalan
All right, Brandon, back, back to you. So what are CPG brands doing to stay compliant with rpa? And does this compliance ultimately destroy the whole where to buy as an intent to help the consumer, to your point, know what offers are available to them.
- [26:42]
Brandon Nutter
So. So here's what we've seen feet on the ground, when talking to some of the leading CPG brands out there is they're taking the approach of fair and equitable for advertising. And they're looking at how many digital sales are they making on E commerce across these retailers. And they're using the same proportionality of advertising that matches the proportionality of sales. And the reason why that's important is that's the justifiable or equitable portion of the rpa, where what they're really trying to do is make sure that they're giving each retailer a fair shot based on the amount of sales that they're bringing in. So that's first and foremost. The second way that they're thinking about it is they want to make sure. That they're sending advertising traffic to places where it's measurable. So it's the old adage, you know, you're spending marketing dollars but you have no idea how it's actually performing. And so what we're seeing out in the industry is some of the top retailers out there in terms of market share are have these attribution technologies where you can use social and search traffic to be brought in and they can measure the effectiveness of those ads. So in those particular cases, what these brands are doing is they're sending traffic directly from Meta, for instance, or from Google directly into the retailer to really shorten that path of purchase. But the key here though is that you could only do that in cases where you have a direct feedback loop from the retailer. And so that's where, as Steve was calling out earlier, that that's a distinction where it's justifiable because there's a technology that the retailer's giving the CPG brand in order to measure the effectiveness of the roi. Last but not least, another proposed solution is to use where to buy technologies. And so to, you know, talk about the landscape of where to buy. These solutions have been around for a decade or so and essentially what they do is they give optionality to shoppers on where they want to buy and which retailer. And traditionally what we've seen is on brand.com, most of these big CPG brands are not selling products directly, instead they're selling on retailers. So if you're directing traffic to brand.com, then what you can do is you can use where to buy solutions to give options to your shopper on where they want to buy this. Where the rub comes in though is these are decade old solutions and really what's happened in this industry is that this E commerce solutions have evolved where now you can measure how much sales you have coming in from your Meta channel, from your Google channel and more importantly, you're providing this really good and delightful path to purchase. If I, if I'm a shopper, I want to, if I'm looking at an ad, I want to buy this right now. And most likely I'm either buying from some of the top retailers out there, Amazon, Walmart, Target. And so this is the place where you need to be able to send your shopper very quickly to where they want to buy so you're not losing that purchase, that sale out to one of your competitors. So really as we see this market evolving, the way you want to think about this is that if you have the option to send traffic directly to retailer from your meta channels or your search channels and you can effectively measure the roi. Then do that. And in all other cases you still want to make sure that you're giving your other retailers a shot by sending traffic for either brand.com or from your channels to give them optionality on where to buy. And so we see all those solutions together become a very good and thought through RPA strategy.
- [30:40]
Peter V
A reminder to audience of speaking with Brandon Nutter for AMPED and Steve Pett from Gibson Dunn. So let's now evolve to getting into where to buy. What do you feel it is ideal for? And then when is where to buy not ideal and not to be followed. And let's have both of you go. Steve, maybe we start with you first this time.
- [31:02]
Steve Pett
Yeah, so I mean, you know, Brandon's really the expert on the, you know, the uses and misuses of where to buy software. But I think what I can add here is that, you know, there is no one way for a brand to be RPA compliant. The RPA does not require that a brand offer identical promotions to all competing customers. It requires only that, you know, promotions be proportionally equal and functionally available. So to sort of build on what Brandon was discussing, let's, let's sort of dig a little deeper on, you know, thinking about AMP as an example here. So AMP's platform enables brands to allocate advertising spend across retailers. Today, only some retailers like Amazon and Walmart have the technical capability to utilize AMP software. So as a result, brands can use AMPED to direct their advertising spend to Amazon and Walmart, but not other retailers. So the question then is whether these technical limitations mean that brands that use AMPED are taking on some incremental amount of RPA risk. And in my view, I think the answer is pretty clearly no. As I mentioned, a brand's only obligation under the RPA is to make promotional opportunities available to competing customers on a proportionally equal basis. It does not require that a brand offer equivalent promotions to all customers. So where a retailer lacks the technical sophistication to take advantage of a particular promotion, you know, such as by utilizing AMP software, the brand's only obligation is to offer a reasonable alternative. And there are many such alternatives. In many or maybe all cases, the promotional opportunities that the brand already offers to these other customers today would probably suffice as reasonable alternatives. So for example, a brand could offer these other customers a promotional alternative through the existing where to buy software that we're just talking about that's integrated into the brand's own dot com sites or through other retail media network activations that, you know, serve similar promotional purposes. You know, again, the brand does not need to offer the same promotion in the same form to all competing customers. It only needs to provide promotions that are reasonably proportionate and practically usable under the circumstances for that particular retailer. So that should be easy to accomplish for any CPG company working with AMT and likely without, in most cases, likely without any material change to the company's existing business practices. And another just sort of a follow on point to this is that at least as I understand it, AMPED is committed to extending its platform to any retailers who are willing and able to provide a suitable API for integration. So, you know, we're not talking here about a case in which the promotional opportunity is being, you know, intentionally reserved for some favored group of customers. And that's what the RPA is generally concerned about. You know, you know, really quite the opposite here. AMP seems to, you know, welcome all comers. And I think this fact, you know, further confirms, you know, at least in my view, that, you know, using AMP shouldn't create any incremental RPA risk for the, for the brands that may use it.
- [34:25]
Brandon Nutter
Just adding on to that is everything Steve is, is talking about here is exactly our viewpoint as well, from the AMP perspective. And if you think about where to buy, where to Buy does an excellent job on Brand.com where if, if a customer and a shopper is visiting your brand, then you're giving them choices on where to buy. These software solutions were never meant to get customers from an advertising channel into a retailer. They were really meant to be compliant. And this is, this is the next evolution of what we're looking at here is we really need to start thinking from the shopper perspective. And if they're ready to buy, allow them to buy instantly. Don't make them walk through three or four clicks, don't give them another wall of choices to look at. And then ultimately, when we look at these brand advertisers, it's still the concept that they're going for reach, impressions and clicks. But as you start rolling up to the end goal, advertising needs to generate sales, it needs to move product. And so really the next evolution here is how do you measure the performance in terms of sales on how your marketing is doing? And so if you know that the majority of your shoppers are going to Amazon and going to Walmart, then what Steve and I are talking about here is how you could do this and not take on any additional RPA compliance risk. But take them directly to where they can buy instantly. And so really at the end, here's what happens. The shopper benefits because they're delighted, where they click on an ad and now they can instantly buy, whether it's Amazon or Walmart. And now the brand can actually tell which advertising is working. They can increase budgets or in places where their advertising is actually connected at the right time, the right place with the right product, with the right shopper and they're not wasting their budgets anymore. That direct feedback is allowing them to be very effective with their advertising. And so just adding on to what Steve was saying is we see this as a place where both exist. There's always a reason to use where to buy software and solution on brand.com and for other retailers that don't have the functionality in order to measure that closed loop feedback roi. But places where you know your customers are buying and your shoppers want to go and to where you have the attribution, such as on Amazon or Walmart, take them directly there.
- [37:12]
Shree Rajagopalan
So what I hear you saying, Brandon, is in the end, essentially the onus is on the retailer of the marketplace to make their marketplace available to tech platforms like Amped to better enable where to buy. It's not the onus of you to make sure that you're adding every single retailer out there so that you can somehow make that brand compliant with Robinson Patent. Steve, case studies that you have seen that kind of illustrate some of what we're talking about today.
- [37:48]
Steve Pett
Yeah, so I mean, I think I talked about the two main recent ones earlier. You know, there's been two high profile Robinson Pappin cases that have been filed recently. You know, the one against Southern Glazers, that is the Section 2, a classic price discrimination case. And then there's the Pepsi case that was filed under sections 2D and 2E. And again, like from my perspective, you know, those cases were filed during the former administration and whether they are predictive of what the FTC is going to be doing over the next at least four years. I mean, is, I mean, in my view, I don't think that it's very predictive. So I think that sort of the lessons to be drawn from those cases are relatively limited. Again, I, as I cautioned earlier, I think, you know, the, the current sort of set of commissioners haven't completely ruled out RPA enforcement. It's possible that they bring a case. I'd be surprised if they did. And I've, and you know, the, the, the risk of private enforcement is, is always present. So I think it's important for, you know, CPG companies to continue to take the RPA seriously, but they should also do it with a recognition that, you know, they need to balance sort of the legal risk on the one side and the business consequences of, you know, you know, perfect, of ensuring perfect compliance 100% of the time. Because I'll tell you, you know, I think that the Robinson Patman act is a statute that is incredibly hard to comply with perfectly 100% of the time, even for the most diligent companies with the, you know, the deepest bench of lawyers. Because it's a really complex statute that again, is not always intuitive and is often, you know, runs counter to sort of, you know, business intuitions, you know, so what every company should be doing is, you know, calibrating their, their compliance efforts to the level of risk that is present. And I think they should continue to doing that going forward, including during the Trump administration. But again, it's important to think on sort of both sides of the legislature.
- [40:06]
Peter V
So, Brandon, I think we both can conclude that this is a misunderstood topic or still developing hot topic. So let's talk about AMP's value in this area. So how is AMP's platform help in the space? Why should a brand invest with you to overcome this challenge? What is then the advantage of sending closed loop traffic directly to retailers? And then I worry about the first party data. Does that get lost as only retail will have it, by passing on a prospective shopper from a where to buy over to the retailer and only for the data never to come back?
- [40:45]
Brandon Nutter
Yeah. Great. So Amped was created to really shorten the path to purchase for these shoppers and for the brands to really provide a feedback loop so that they can confidently spend their advertising dollars in the right places. And really what we're going for is how do we connect these large platforms, whether It's Meta, Google, TikTok, YouTube, where shoppers are shopping, they're browsing to the places where they buy, whether it's Amazon, Walmart and in the future, other retailers that have attribution technologies. And really what we've seen here is that the benefit is a couple fold here for either the shopper and the brand. First the shopper, now as soon as they click an advertisement, they're brought directly to the product where they can buy instantly. It takes less than a couple seconds. The second thing that we've seen that's really been helpful for brands is that brands can now really spend their advertising dollars and understand which creatives are working. If you think about Meta and think about some of the largest CPG brands out there, really what's happening is they have hundreds and hundreds of creatives, whether it's videos or still advertisements that are going on at any one time. And right now, if they're not using a technology like amp, they have no idea on which creatives and which advertisements are performing. And here's what they have today. If they're using a where to buy solution, you get add to carts, you get link clicks, you get to see which retailer they clicked on from that interstitial landing page. But you don't get to see conversions, you don't get to see sales. They're new to brand. So really what we're doing is we're providing a level of sales data that's never been seen before. Going from these marketing channels, meta, Google, TikTok into directly to the retailer. The first party data question is is interesting because that is one of the big shifts I think in thinking about this as an advertiser is when you're sending traffic, think of just meta. For instance, when you're sending meta going into your Brand.comD2C site, you have that conversion pixel, meaning that you can measure that feedback loop and you have the chance to get their email address. You can then retarget them in that case, in this case, you're absolutely right. You're not going to get that email address, you're not going to be able to capture that first party information between the channel of meta or Google going to retailer. But here's what you can do in Meta at least you can retarget customers that have interacted with your ads. So that way you know that they've spent time looking at your brand, your products, and you can then retarget them on Meta itself to bring them more down the funnel. So then when they're ready to transact and buy, you're able to get them directly where they want to go. The second thing that you're able to do is you're able to create a retargeting group, whether it's Amazon or Walmart on those DSP platforms. So just because they haven't bought right now you're able to take those signals whether they visited the page, whether it's using the attribution technologies, whether they did the add to cart to then retarget them. And the benefits are really big here because what we're seeing here is we're seeing an outsized effect when a brand sends this traffic over either From Meta Google, TikTok directly into Amazon or directly into Walmart. We're seeing that it's really lifting the overall performance of their products on the digital shelf. And so it's not just the attribution of the original product, the sale there, but it's really waking up the algorithms, whether it's Amazon or Walmart, to say I'm seeing a lot of traffic come in organically and through other advertising channels. Therefore, let's promote these products more heavily to the top of the page. And so that's the exciting part here is you're able to use this retargeting data on these retailers. You're able to now get more traffic and more organic and halo effects on these retailers and you're providing a delightful shopper experience and, and ultimately now the brand can really advertise with the right advertisements and be confident that they're doing so.
- [45:07]
Shree Rajagopalan
All right, so Steve, let's close with you. Any final advice to brands so that they can reasonably remain compliant with rpa? What are your thoughts?
- [45:20]
Steve Pett
Yeah, so I think I just close pretty briefly and say that, you know, as a very general matter, I think CPG companies should not let the RPA get in the way of achieving their business goals. Because in my experience, there is almost always a way to meet your business objectives while taking on minimal RPA risk. And sometimes that takes some creativity. You know, it takes talking to somebody who's, you know, you know, knowledgeable about the RPA and what the law is and you know, where, you know, you know, the types of options that are available to companies to stay in compliance with the RPA and keep, keep risk to a minimum. But again, again, in my experience, you know, you can be creative. There are lots of different ways to reach the, the proportional equality requirement under the rpa. So I guess I'd say that for the CPG companies thinking about compliance, they shouldn't feel hamstrung to sort of incumbent options or options that they've used historically simply because they think that that's the only option that they can utilize in order to comply with the Robinson Patent Act. Because I don't think that that's true and I don't think it's sort of consistent with where the risk landscape is right now.
- [46:50]
Peter V
What an awesome conversation, Brenda. I hope you'll come back or maybe we can have AM back on the show in this future to get into a lot more details about the where to buy, the pass through to the retailers. Sort of the high level of what we discussed over here, which was retargeting things of that nature. We'll always welcome AM back on the show. Brandon and Steve, I want to thank you both for joining me on the show.
- [47:13]
Brandon Nutter
Thank you for having us. It's been a pleasure.
- [47:15]
Steve Pett
Likewise. Thanks so much. Appreciate it.
- [47:17]
Peter V
Let me remind our listeners you can find all of our content by simply going to a web Browser and typing cpguys.com as the actual URL. If you or someone you know has something to contribute to this ongoing discussion in the industry on the CPG Guys, please drop us a line@contactpguys.com again that email is contact guys.com to our audience and partners. Thank you for the clicks, likes, comments, DMs, meeting us at trade shows, coming to our events, recording episodes with us. Without you, the show doesn't exist. So we are always grateful to you with that. Thank you. Peter. Thank you for joining me and running this journey of the CPG Guys. It's always a pleasure. That's a wrap of this episode of the CPG Guys Foreign.
- [48:06]
Shree Rajagopalan
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