Antitrust and Unfair Competition Law

Competition: FALL 2022, Vol 32, No. 2


Written by Lesley Chiou and Avigail Kifer1


Offering products for "free" has long been an important tool in business strategy. The U.S. calendar is peppered with days on which consumers can receive treats for free: National Pizza Day (February), National Donut Day (June), and Free Slurpee Day (July), among others.2 The Yellow Pages have been distributed to consumers free of charge for decades, as have free-to-air television and radio services. Brick-and-mortar retail establishments offer free samples or products to draw people into their storefronts, and companies have also offered branded apparel and "giveaways" in hopes that wearers would help spread brand recognition.

Nevertheless, "free" products have recently been the focus of many antitrust investigations and complaints, both in the U.S. and abroad. "Free" products have gained particular prominence and ubiquity as the digital economy has developed and expanded. Today’s consumers regularly use zero-price digital products or services in the form of search engines (Google, Yahoo, Bing), creative content (YouTube, Pinterest), social media (Facebook, Twitter, TikTok), communications products (Skype, Zoom), travel booking sites (Priceline, Kayak), and navigation services (Waze, Apple Maps, Google Maps).

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