By: Leslie Sarasin, President and CEO, Food Marketing Institute 

barcodeThe history of supermarkets and grocery stores resounds with groundbreaking events; the introduction of the shopping cart revolutionized the consumer shopping experience in the 1930s and years later, the development of the bar code began the avalanche of technology into our operations. Through every change, food retailers have sought to preserve the trust customers have placed in them and this includes protecting the confidentiality of private businesses’ commercial data. 

Our industry has proven its ground-breaking resilience once again. On Monday, June 24, the U.S. Supreme Court ruled in FMI's favor in a case that has far - reaching implications when it comes to business owners’ confidential commercial data, specifically in this case the Supplemental Assistance Nutrition Program, or SNAP. Food retailers have a sound basis for keeping this data confidential since the public availability of SNAP redemption data could give competitors more accurate insights into their SNAP and non-SNAP store sales. With a 6-3 Supreme Court opinion, the case now goes back to the lower court to establish Food Marketing Institute v. Argus Leader as the new standard for determining that which is confidential and therefore not available to the public through the Freedom of Information Act (FOIA). Moving forward, information deemed “confidential,” “private,” or “secret” means just that – plain and simple - without any additional considerations for a determination of "significant economic harm."

The Freedom of Information Act was created to shine a light on actions by the government, not on that of private parties, and the FMI case sets an important precedent well beyond disclosing store-level SNAP sales in grocery. The case applied to private information that the government holds; it’s not a decision that goes to the heart of FOIA. Instead, Exemption 4 protection under FOIA limits the use of FOIA as a weapon in the commercial intelligence wars, without impairing FOIA’s fundamental purpose of enabling the public to ascertain what government agencies— as opposed to private business competitors—are up to. 

Protecting business data and encouraging competition also supports shopper privacy. We have worked diligently over the last several decades to mitigate the stigma associated with the receipt of SNAP benefits and to protect the privacy of the SNAP customer. Grocers help to maintain the SNAP program’s integrity, and at FMI, we see the SNAP program as a vital part of the motto of what FMI member companies strive to do everyday -- to feed families and enrich lives. 

It’s important to note that the Court’s decision did not disrupt the vast amount of SNAP information that is already publicly available, including the amount of SNAP dollars redeemed by month and by state and county; interested parties can compare one year to the next or one year to five years; and USDA’s website also identifies SNAP-participating stores and redemptions by category. What’s not, and based on the Supreme Court's decision, will not be public is the amount of SNAP sales on a store-by-store level. Store-level data, such as the amount of transactions grocers do with cash, credit, debit, check or even gift cards, will continue to be treated the same as Electronic Benefits Transfer (SNAP) payments - as confidential business information. The Supreme Court’s decision not only secures the 2005 to 2010 SNAP data that was being sought by Argus Leader, it will likely safeguard against future requests for retailers’ SNAP data. The decision may also help limit disclosure of other types of private commercial information that has been submitted to the government. 

While FMI and the retail industry won an extraordinary Supreme Court victory protecting confidential business information, a flawed bill introduced in the U.S. Senate - S. 2220 - threatens to negate that protection. Despite its goal of supporting government transparency, S. 2220 would instead put companies who submit data to the U.S. Government at risk of costly litigation in order to protect it.

Please write your Senators asking them to oppose this attempt to give competitors your confidential data, threatening the viability of your business and the jobs you provide. If you’re interested in hosting a store tour for your Member of Congress during the month of August, please reach out to us.  We would be pleased to help you make arrangements.

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