No, my impression is that willingness to pay is a sufficient but not necessary condition to conclude that an industry standard benefits customers. A different sufficient condition would be an assessment of the effects of the standard by the regulators in terms of welfare. I assume that is the reason why the regulators in this case carried out an analysis of the welfare benefits, because why even do so if willingness-to-pay is the only factor?
More speculatively, I would guess that Dutch regulators also take account welfare improvements to other humans , and would not strike down an industry standard for safe food (if the standard actually contributed to safety).
I haven’t read the case, but under US antitrust law this case would have the same result. The reasoning would be that individual consumers WTP for animal welfare improvements is a benefit to them, but that benefit can be realized without anticompetitive harms of raised costs and reduced variety: namely, welfare-conscious consumers can pay more for chicken raised in better conditions, and welfare-indifferent consumers still have the option to buy cheaper chickens. The discussion of “welfare” as such would therefore be a bit misleading in the US context—it’s a shorthand for the maximal consumer surplus in competitive market conditions, not the type of felicific calculus EAs often do.
I would guess that Dutch regulators also take account welfare improvements to other humans , and would not strike down an industry standard for safe food (if the standard actually contributed to safety).
I wouldn’t be so sure. US antitrust authorities have repeatedly struck down pro-safety anticompetitive agreements on the justification that consumers should generally be allowed to make their own price-safety tradeoffs. See my paper that Paul linked. Of course, Dutch antitrust authorities may see it differently, but European and US antitrust analysis are usually pretty harmonized.
Sorry if this is a lame question, but do you think that regulations and standards on ESG that explicitly mentioned animal welfare—something more like soft law, or “comply or explain”, e.g., “companies must disclose animal welfare policies”, or “social and environmental risks include losses due to… animal cruelty”—could be enough to start a change in US antitrust law interpretation on blacklisting products out of animal welfare concerns?
No, my impression is that willingness to pay is a sufficient but not necessary condition to conclude that an industry standard benefits customers. A different sufficient condition would be an assessment of the effects of the standard by the regulators in terms of welfare. I assume that is the reason why the regulators in this case carried out an analysis of the welfare benefits, because why even do so if willingness-to-pay is the only factor?
More speculatively, I would guess that Dutch regulators also take account welfare improvements to other humans , and would not strike down an industry standard for safe food (if the standard actually contributed to safety).
I haven’t read the case, but under US antitrust law this case would have the same result. The reasoning would be that individual consumers WTP for animal welfare improvements is a benefit to them, but that benefit can be realized without anticompetitive harms of raised costs and reduced variety: namely, welfare-conscious consumers can pay more for chicken raised in better conditions, and welfare-indifferent consumers still have the option to buy cheaper chickens. The discussion of “welfare” as such would therefore be a bit misleading in the US context—it’s a shorthand for the maximal consumer surplus in competitive market conditions, not the type of felicific calculus EAs often do.
True, this resonates with arguments presented in the In Re Processed Eggs… case: https://law.justia.com/cases/federal/appellate-courts/ca3/19-1088/19-1088-2020-06-22.html
I wouldn’t be so sure. US antitrust authorities have repeatedly struck down pro-safety anticompetitive agreements on the justification that consumers should generally be allowed to make their own price-safety tradeoffs. See my paper that Paul linked. Of course, Dutch antitrust authorities may see it differently, but European and US antitrust analysis are usually pretty harmonized.
Sorry if this is a lame question, but do you think that regulations and standards on ESG that explicitly mentioned animal welfare—something more like soft law, or “comply or explain”, e.g., “companies must disclose animal welfare policies”, or “social and environmental risks include losses due to… animal cruelty”—could be enough to start a change in US antitrust law interpretation on blacklisting products out of animal welfare concerns?