Oct. 7(Reuters) - The U.S. Supreme Court declined on

Monday to hear 5-Hour Energy drink maker Living Essentials'

challenge to a lawsuit claiming it gave discounts to retail

giant Costco that undercut other wholesalers.

The justices turned away Living Essentials' appeal of a

lower court's decision last year that said the wholesalers could

sue to level the playing field for the popular energy shot.

The Supreme Court issued its order without comment, and the

wholesalers' case will now return to the federal district court

in Los Angeles, where the lawsuit was filed in 2018 against

Living Essentials and its parent company Innovation Ventures.

Living Essentials and attorneys for the wholesalers did not

immediately respond to requests for comment. Costco, which was

not a defendant in the lawsuit, did not immediately respond to a

request for comment.

The plaintiffs, including U.S. Wholesale Outlet &

Distribution and other sellers, said they competed with Costco

for retail sales of 5-Hour Energy drinks, which come in small

bottles and give users a jolt of caffeine.

They accused Living Essentials of violating the

Robinson-Patman Act, a U.S. antitrust law that broadly forbids a

company from charging different prices for the same product to

two or more competitors.

Living Essentials countered that Costco was a retailer and

not a rival to the wholesalers, and so the price discrimination

law should not apply.

A U.S. judge agreed with Living Essentials, but a panel of

the San Francisco-based 9th U.S. Circuit Court of Appeals last

year overturned the lower court ruling.

Living Essentials argued in a filing at the Supreme Court

that the appeals court order threatened to expose more companies

to liability over price discounts.

The case is Innovation Ventures and Living Essentials et al

v. U.S. Wholesale Outlet & Distributors et al, U.S. Supreme

Court, No. 23-1099.

For petitioners: David Frederick of Kellogg, Hansen, Todd,

Figel & Frederick

For respondents: Mark Poe of Gaw Poe