WASHINGTON, Feb. 22, 2017 - A six-year fight by a South Dakota newspaper to obtain retail-specific data on Supplemental Nutrition Assistance Program sales will likely last another year after supermarkets were able to secure a delay in the planned release of the information by USDA’s Food and Nutrition Service.
U.S. District Judge Karen Schreier had issued a Nov. 30 order requiring FNS to release SNAP retailer data, including yearly spending totals at individual retail locations. But the Food Marketing Institute intervened late last month and got Schreier to stay her decision until FMI could appeal the ruling to the 8th Circuit, which it did Feb 15.
“I would hope the case is briefed and argued by the end of 2017, but there is no timetable on that, so I am just hopeful,” Jon Arneson, attorney for the Argus Leader in Sioux Falls, said in an email Feb. 20.
Asked whether there was any possibility of a settlement, Arneson said no, because “there really is no plausible compromise position with respect to the data requested.”
The newspaper maintains that the public has a right to know the information. “This is a federal program, financed by taxpayers, and the retailers who participate in the program do so voluntarily,” said Cory Myers, the Argus Leader interim news director. The data also “has importance in public policy discussions about food policy and food security in one of the nation’s biggest safety net programs.”
USDA is not part of the appeal, leaving FMI to try to convince the appeals court that the information should not be released under the Freedom of Information Act (FOIA) because it would put small retailers at a competitive disadvantage.
Schreier rejected that argument in her decision, saying USDA was not able to show that releasing the requested information “would cause substantial competitive harm.”
“SNAP sales are merely a part of the store’s total revenue,” she said. “SNAP data does not disclose a store’s profit margins, net income, or net worth” or reveal how a company bids on government contracts or negotiates with the federal government.
“In essence, SNAP data is merely a bill from the retailer to the government,” she said. “As the USDA acknowledges, this type of data is regularly disclosed, and disclosure is consistent with FOIA’s underlying purpose.” SNAP, the successor to USDA’s food stamp program, sent benefits to more than 44 million Americans each month in 2016. Taxpayers paid almost $71 billion for the program last year, including administrative costs.
FNS said Jan. 18 it planned to release the data as ordered. However, FMI President Leslie Sarasin said in a declaration to the court that starting the next day, its SNAP-authorized members started expressing “concerns” about this “unexpected development.”
“FMI had no knowledge that USDA did not intend to appeal” the court’s judgment, Sarasin said. On Jan. 27, four days before USDA planned to release the data, FMI decided to intervene “to prevent disclosure of this sensitive and confidential information.”
FMI “believes disclosure of individual store SNAP redemption data will be used by retailers of food products to analyze competitors' current vulnerabilities, market share for SNAP participants, and volume of sales, each of which would result in significant harm to the competitive position of participating retailers,” Sarasin said.
The National Grocers Association, representing about 6,000 retail food stores, supported FMI’s motion to intervene. In a filing with the court, Greg Ferrara, NGA’s senior vice president for government relations, said that disclosure “would permit competitors to make highly accurate estimates regarding each store’s annual gross receipts and they would in all likelihood rely heavily on such information to determine whether to increase concentration in proximity to those stores.”
In her decision, Schreier addressed the claims of a Tennessee supermarket chain owner who said release of SNAP data would hurt his stores’ competitive position. Schreier cited the owner’s testimony that “Wal-Mart has already saturated his market, even without the requested SNAP information.”
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