Competition in Food Delivery and Exclusivity Clauses: What the Dispute Between Platforms Signals for Businesses

The dispute involving 99Food and Keeta has gone beyond the food delivery sector and become an important test case for Competition Law as applied to digital platforms in Brazil. The central issue is determining how far a company can use contractual clauses to restrict partners' activity on competing platforms without turning a legitimate business strategy into an artificial barrier to the entry of new players. For business owners and managers, the discussion matters because similar models appear in marketplaces, payment methods, mobility, tourism, digital advertising, franchising, and other ecosystems based on technological intermediation.

The case gained relevance after Keeta challenged 99Food's contracts with restaurants that, according to the competitor, prevented certain establishments from maintaining business relationships with companies in the Meituan group. 99Food argues that this is partial exclusivity, voluntarily negotiated and accompanied by financial incentives, with economic rationale to allow an entering platform to reach scale and compete for space with the market leader. The controversy, therefore, is not limited to the existence of exclusivity itself. The legal debate lies in the purpose, scope, duration, and concrete effects of these restrictions on competition.

Contractual exclusivity is not inherently unlawful

Under Brazilian law, exclusivity clauses are not automatically prohibited. They can protect investments, ensure demand predictability, enable commercial campaigns, and reduce risks in business relationships. The problem arises when the restriction stops producing justifiable economic efficiencies and instead closes off essential channels of market access, hinders competitors' expansion, or significantly reduces business partners' freedom of choice.

The main legal reference is Law No. 12,529/2011, the Brazilian Antitrust Law (Lei de Defesa da Concorrência). Its Article 36 considers as violations of the economic order acts whose object is, or which may produce effects such as, limiting or harming free competition, dominating a relevant market in a manner not resulting from greater efficiency, arbitrarily increasing profits, or abusively exercising a dominant position. The law presumes a dominant position when a company controls 20% or more of the relevant market, a percentage that may be adjusted by Cade (the Brazilian antitrust authority) according to the characteristics of the sector. This presumption, however, does not function as a safe harbor for companies below that threshold, since competitive analysis continues to depend on the effects of the conduct and the concrete structure of the market.

What makes digital platforms especially sensitive

Platform markets have characteristics that make an apparently ordinary clause more relevant from a competitive standpoint. Network effects, scale, data access, recommendation algorithms, loyalty programs, and the need to simultaneously bring together consumers, establishments, and service providers can favor concentration. In delivery, a strategic restaurant does not represent merely an individual business relationship. It can attract consumers, increase orders, improve logistical density, and make the platform more useful for other restaurants and couriers.

In this context, the concept of multi-homing gains importance—that is, the possibility of a restaurant operating on more than one platform at the same time. When contracts reduce this possibility on a relevant scale, legal analysis tends to examine whether the competitor loses access to indispensable partners, whether equivalent alternatives exist, how long the restriction lasts, what penalties apply, and what investments or economic benefits justify the commitment. It is this assessment of effects, rather than the simple contractual label, that distinguishes defensible exclusivity from a potentially exclusionary practice.

The iFood precedent and Cade's enforcement approach

Cade has already dealt with similar concerns in the delivery market. In 2023, it entered into a Cease and Desist Agreement (Termo de Compromisso de Cessação) with iFood following an investigation into exclusivity agreements with restaurants. The agreement, valid for 54 months, prohibited exclusivity with chains of 30 or more restaurants and set limits for smaller brands. Among the restrictions, a national cap of 25% of gross merchandise volume tied to exclusivity was established, along with a local limit of 8% of exclusive restaurants in municipalities with more than 500,000 inhabitants, a maximum duration of two years for certain commitments, and a subsequent period without exclusivity.

The agreement also banned price parity clauses in relation to other marketplaces and practices capable of inducing de facto exclusivity. For companies, the message is significant: Cade does not examine only the formal wording of the contract. Incentives, discounts, volume targets, penalties, and commercial conditions can be assessed based on the economic effect they produce. In competition compliance terms, an obligation that does not use the word "exclusivity" may carry the same legal risk if, in practice, it substantially prevents or discourages contracting with competitors.

The current stage of the dispute between 99Food and Keeta

At the administrative level, Administrative Inquiry No. 08700.008408/2025-19 was opened to investigate the clauses adopted by 99Food. Cade's General Superintendence closed the investigation in June 2026, but the agency's Tribunal ordered it to continue. On September 2, 2026, Cade denied, at that point, the preliminary injunction requested by Keeta, but ordered further evidentiary proceedings to examine the effects of the clauses, the possibility of multi-homing, the duration and scope of the contracts, the incentives and penalties involved, the relevance of the affected restaurants, and the current competitive structure of the market.

This point matters for business management. The absence of a preliminary injunction does not amount to a definitive declaration of lawfulness. Cade itself considered it necessary to gather more evidence before reaching conclusions about the competitive effects. It also ordered that documents relating to practices attributed to Keeta be evaluated, reinforcing a basic antitrust premise: the analysis must be symmetrical and effects-oriented, regardless of which company plays the role of complainant or respondent.

In the Judiciary, the controversy also remains open. The lawsuit is proceeding before the São Paulo Court of Appeals (Tribunal de Justiça de São Paulo) under case No. 1106263-59.2025.8.26.0100. At first instance, the challenged clauses were deemed unlawful. In the appellate judgment, which began on August 11, 2026, the rapporteur, Judge Rômolo Russo, voted that provisions targeted against a specific competitor would exceed the limits of legitimate commercial exclusivity. The judgment was interrupted by a request for further review (pedido de vista), and as of September 8, 2026, there was no final collegiate decision, with resumption scheduled for September 29.

Case law and the limits of contractual freedom

The discussion connects to broader precedents on free enterprise and free competition. In Special Appeal (REsp) 1,172,603/RS, the Superior Court of Justice (STJ), in the context of a medical cooperative, recognized that an exclusivity requirement can make it unfeasible for competitors to establish themselves and can produce artificial market dominance. The sector was different, but the reasoning remains useful: private autonomy and contractual freedom do not exclude legal scrutiny when the contractual structure significantly interferes with market access.

At the Federal Supreme Court (STF), General Repercussion Theme 967, related to app-based individual transportation, affirmed the constitutional protection of free enterprise and free competition against undue restrictions on economic activity. The precedent does not address exclusivity between private companies, but it reinforces that the Brazilian regulatory environment protects open markets and innovation, while also allowing state intervention to curb abuse of economic power, pursuant to Articles 170 and 173, Paragraph 4, of the Federal Constitution.

Regulatory trends for digital markets

The topic also fits into a broader movement to update competition tools for the digital economy. In July 2026, Cade released a specific study on ready-to-eat food delivery platforms, gathering international experiences and concerns related to anticompetitive conduct. In the National Congress, Bill No. 2,768/2022 advanced in 2026 with a substitute version approved by the Chamber of Deputies' Economic Development Committee, providing for Cade's authority over specific proceedings concerning practices harmful to competition in digital markets. The proposal still depends on further legislative steps and should not be treated as current law.

For companies that operate on or depend on platforms, the trend is toward greater scrutiny of contracts, incentives, and mechanisms for accessing the ecosystem. Preventive review should consider not only the civil validity of the clauses, but also market share, the strategic importance of partners, the real possibility of simultaneous contracting, the duration of restrictions, documented economic justifications, and the impact on competitors and consumers. Competitive risk often arises from the combination of several contractual elements that, in isolation, would seem unremarkable.

The dispute between 99Food and Keeta shows that the line between aggressive competition and anticompetitive restriction will increasingly be defined by the concrete effects of business strategies. Exclusivity can be legitimate, but its legal certainty depends on proportionality, economic justification, scope, duration, and market context. For managers, the key point is not to avoid every restrictive clause, but to understand when it may block access to essential partners, reduce multi-homing, or create artificial barriers for competitors.

In digital markets, contractual, commercial, and expansion decisions should be accompanied by competitive analysis from the strategy design stage onward. Preventive legal counsel, integrated with business and compliance teams, tends to be especially valuable for documenting efficiencies, reviewing incentives and penalties, and reducing exposure to administrative investigations or business litigation, without compromising the legitimate ability to compete.