Company Name: Kroger Co.
Public Availability Date: April 6, 2006

Document Sections:

INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
STAFF REPLY LETTER

[INQUIRY LETTER]

February 9, 2006

VIA DHL EXPRESS

U.S. Securities and Exchange Commission
Division of Corporation Finance
100 Fifth Street, N.E.
Washington, DC 20549

RE: Shareholder Proposal of People for the Ethical Treatment of Animals

Ladies and Gentlemen:

Enclosed for filing, pursuant to Rule 14a-8(j) under the Exchange Act, are the following:

A. Six copies of this letter;

B. Six copies of a letter dated January 11, 2006, from People for the Ethical Treatment of Animals (the "Proponent"), along with a shareholder proposal and supporting statement (the "Proposal") (Exhibit A); and

C. One additional copy of this letter along with a self-addressed return envelope for purposes of returning a file-stamped receipt copy of this letter to the undersigned.

The resolution portion of the Proposal reads as follows: "NOW THEREFORE, BE IT RESOLVED that shareholders request that the Board of Directors issue interim reports to shareholders following the second, third, and fourth quarters of 2006 detailing the progress made toward accelerating the development of CAK [controlled-atmosphere killing]."

Kroger intends to mail to shareholders, on or about May 15, 2006, its definitive proxy statement and form of proxy (the "Proxy Materials") in conjunction with its 2006 Annual Meeting. That meeting currently is scheduled to be held on June 22, 2006. Kroger intends to file preliminary Proxy Materials with the Commission on or about April 17, 2006, and intends to file definitive copies of its Proxy Materials with the Commission at the same time the Proxy Materials are first mailed to shareholders.

We believe that the Proposal may properly be omitted from the Proxy Materials pursuant to Rule 14a-8(i)(3), and Kroger intends to exclude the Proposal from the Proxy Materials. By a copy of this letter to the Proponent, we are notifying the Proponent of our intentions. Please confirm that no enforcement action will be recommended if the Proposal is excluded.

THE PROPOSAL AS A WHOLE IS MATERIALLY FALSE AND MISLEADING AND MAY BE EXCLUDED UNDER RULE 14a-8(i)(3).

A shareholder proposal or supporting statement may be excluded under Rule 14a-8(i)(3) where it is "contrary to any of the Commission's proxy rules, including Rule 14a-9, which prohibits materially false or misleading statements in proxy soliciting materials." Kroger believes, consistent with the Staff's view on Rule 14a-8(i)(3) as expressed in Staff Legal Bulletin No. 14 (July 13, 2001) and reiterated in Staff Legal Bulletin No. 14B (September 15, 2004), that the Proposal may be excluded in its entirety because it is premised on materially false and misleading statements. "[W]hen a proposal and supporting statement will require detailed and extensive editing in order to bring them into compliance with the proxy rules, [the Staff] may find it appropriate for companies to exclude the entire proposal, supporting statement, or both, as materially false or misleading." Kroger acknowledges that there are cases in which a proposal may be revised under Rule 14a-8(i)(3) to render it not materially misleading or false. See, e.g. The Procter & Gamble Company (July 15, 2004); Wyeth (January 13, 2004); and McDonald's Corporation (March 30, 2002) (each allowing exclusion of false and misleading statements in proposals submitted by the Proponent for inclusion in the proxy statements). In this case, however, because the Proposal is fundamentally based upon material misrepresentations, the Proposal should be excluded in its entirety. See, e.g. State Street Corporation (March 1, 2005).

The Proposal is materially false and misleading in the following respects:

1. The statement that "Kroger has done nothing at all as far as the humane community is concerned" is materially false and intentionally misleading.

The above statement included in the second "Whereas" clause in the Proposal is materially false and misleading. Kroger's commitment, leadership and results with respect to animal welfare matters are well established, and recognized, within the industry. In fact, when this very same Proponent submitted a comparable proposal, that was soundly defeated last year, it recognized Kroger for showing "its commitment to the important consumer issue of animal welfare by adopting the animal welfare guidelines of the Food Marketing Institute (FMI) and by being one the first major grocery chains to adopt meaningful animal welfare guidelines." (See, Kroger's Form DEF 14A, filed May 16, 2005, pg. 38, emphasis added). Yet Proponent now claims the opposite in stating, "Kroger has done nothing at all as far as the humane community is concerned." Proponent's intent to mislead is clear, and the Proposal should be excluded.

2. The repeated references that Kroger's competitors have made measurable progress toward adopting the implementation of CAK is unsubstantiated and misleading.

The Proponent states in the second "WHEREAS" clause that "Kroger's competitors including Safeway, Albertsons, and Whole Foods have made measurable, publicized progress on animal welfare issues." Nowhere does the Proponent offer a description of, or a source for locating a description of these competitors' animal welfare standards. Kroger's shareholders would be unable to determine the accuracy of the Proponent's statement. The Proponent also references Kroger's competitors in the third and ninth "WHEREAS" clauses in the Proposal. These purported "facts" are misleading because neither Kroger nor its shareholders are in a position to challenge them in the absence of the Proponents' providing a citation to or other means of accessing competitors' animal welfare standards. The absence of substantiation or access to cited authority renders the statements misleading within the meaning of Rule 14a-9. See, e.g. McDonald's Corporation (March 20, 2002).

3. The supporting statements in the Proposal referencing a "report" are misleading because this report is neither identified nor cited.

The Proposal references a "report commissioned by McDonald's" in the sixth and seventh "WHEREAS" clauses but fails to further identify the report, or provide a citation to or other means of accessing this report. This is misleading because neither Kroger nor its shareholders are in a position to challenge the subject matter of the report or the accuracy of the Proponent's statements. The absence of substantiation or access to cited authority renders the statements misleading within the meaning of Rule 14a-9. See, e.g. McDonald's Corporation (March 20, 2002).

The Proposal is so littered with assertions that are false, misleading, and/or made without factual support that it would require such detailed and extensive editing to make it compliant with the proxy rules. More importantly, for the Proponent to applaud Kroger for its actions last year and then to condemn Kroger this year as having "done nothing at all as far as the humane community is concerned" is clear evidence of the Proponent's bad faith and intent to mislead. Based on the foregoing, Kroger respectfully requests that the Staff agree that Kroger may omit the Proposal from its Proxy Materials.

Very truly yours,

/s/

Jill V. McIntosh

encl.

cc: Matt Prescott

[INQUIRY LETTER]

January 11, 2006

The Kroger Co.
Corporate Secretary
1014 Vine St.
Cincinnati, OH 45202

To Whom It May Concern::

Attached to this letter is a shareholder proposal submitted for inclusion in the proxy statement for the 2005 annual meeting. Also enclosed is a letter from People for the Ethical Treatment of Animals' (PETA) brokerage firm, Morgan Stanley, confirming ownership of 244 shares of The Kroger Co. common stock acquired more than three years ago. PETA has held these shares continuously for more than three years and intends to hold them through and including the date of the 2005 annual shareholders meeting.

Please contact the undersigned if you need any further information. If The Kroger Co. will attempt to exclude any portion of this proposal under Rule 14a-8, please advise me within 14 days of your receipt of this proposal. I can be reached at 757-962-8264, or via e-mail at MattPrescott@peta.org.

Sincerely,

/s/

Matt Prescott
Manager of Factory Farming Campaigns

Enclosures: Morgan Stanley letter, "The Kroger Co. 2006 Shareholder Resolution re Humane Poultry Slaughter"

[INQUIRY LETTER]

The Kroger Co. 2006 Shareholder Resolution re Humane Poultry Slaughter

Submission Date: January 11, 2006

Submitted to:

The Kroger Co.
Corporate Secretary
1014 Vine St.
Cincinnati, OH 45202

Submitted by:

People for the Ethical Treatment of Animals (PETA)
501 Front St.
Norfolk, VA 23510
757-622-0457 (fax)

WHEREAS consumers consider animal welfare when they decide where to purchase food products; and

WHEREAS Kroger's competitorsincluding Safeway, Albertsons, and Whole Foodshave made measurable, publicized progress on animal welfare issues, yet Kroger has done nothing at all as far as the humane community is concerned; and

WHEREAS Kroger's competitorsincluding those noted aboverecognize the need for humane slaughter methods to keep their competitive advantages and are particularly committed to improving conditions in their poultry suppliers' slaughterhouses; and

WHEREAS Kroger, like its competitors, purchases chickens from suppliers that use electrical stunning, in which the birds' legs are forced into metal shackles before they are shocked with an electric current, have their throats slit, and are dropped into tanks of scalding-hot water, so that they are often still conscious when they suffer this hideous cruelty; and

WHEREAS there is a USDA-approved method of poultry slaughter called "controlled-atmosphere killing" (CAK) that replaces the oxygen that birds are breathing with inert gasses, gently and effectively putting them to sleep; and

WHEREAS a report commissioned by McDonald's ("the report") concurred that CAK is, as animal welfare experts have described it, the most humane method of poultry slaughter ever developed and admitted that CAK "has advantages [over electrical stunning] from both an animal welfare and meat quality perspective ... obviates potential distress and injury ... can expeditiously and effectively stun and kill broilers with relatively low rates of aversion or other distress" and would eliminate the pain of premature shocks and inadequate stunning that are associated with electrical stunning; and

WHEREAS the report further concludes that McDonald's European suppliers that use CAK have experienced improvements in bird handling, stunning efficiency, working conditions, and meat yield and quality;¹ and

WHEREAS it would help the company gain a competitive advantage in the cutthroat food retail industry if it eliminated the worst abuses that chickens suffer during slaughter before they end up on Kroger's shelves and required its suppliers to phase in CAK; and

WHEREAS, although CAK is optimal for both the birds' well-being and for profits, Kroger has made no notable progress toward its implementation, despite the facts that some of its key competitors continue to make progress toward adopting the technology and that it continues to be used in Europe (as it has been for nearly a decade);

NOW, THEREFORE, BE IT RESOLVED that shareholders request that the Board of Directors issue interim reports to shareholders following the second, third, and fourth quarters of 2006 detailing the progress made toward accelerating the development of CAK.

-----FOOTNOTES-----

¹ These are the same improvements that Hormel Foods recently touted in a letter to PETA describing CAK.

[INQUIRY LETTER]

March 3, 2006

Office of the Chief Counsel
Division of Corporation Finance
U.S. Securities and Exchange Commission
100 F St., N.E.
Washington, DC 20549

Via UPS and electronic mail: cfletters@sec.gov

Re: Shareholder proposal of People for the Ethical Treatment of Animals ("PETA") for inclusion in the 2006 Proxy Statement of The Kroger Co.

Ladies and Gentlemen:

This letter is filed in response to a letter dated February 9, 2006, submitted to the SEC by The Kroger Co. ("Kroger" or "the company"). The company seeks to exclude a shareholder proposal submitted by PETA based on Rule 14a-8(i)(3), asserting that it is false and misleading.

For the reasons that follow, PETA requests that the SEC recommend enforcement action if the proposal is omitted.

I. Kroger Has Not Taken Meaningful Steps Toward Improving Animal Welfare

In its 2005 shareholder resolution, PETA touted Kroger's adoption of the Food Marketing Institute's (FMI) animal welfare guidelines. In its 2006 resolution, it points out that "Kroger has done nothing at all as far as the humane community is concerned." The company's noaction letter inaccurately cites PETA's former statement as evidence that its latter statement is false and misleading.

PETA's statement in its 2005 resolution was made following a promise by Kroger to audit its meat suppliers for farmed-animal welfare by pledging to adopt the FMI guidelines, which are based on the Animal Welfare Audit Program (AWAP). This promise went unfulfilledsince making its statement in 2005, PETA discovered that Kroger has yet to show any evidence that it ever conducted a single audit of a single supplier under the AWAP programaccording to the FMI itself, Kroger has not done a single audit. Moreover, on the AWAP Web site, www.AWAudit.org, the participation list is empty, indicating that Kroger does not currently participate in the program. A February 16, 2006, call from PETA to SES, Inc.the company that fields questions about the AWAPconfirmed that the empty participation list on its Web site means that there are no current participants. Thus, while Kroger did promise movement on animal welfare in 2005, it never kept its promise, making PETA's 2006 statement that it has done nothing in this regard true.

More critically, Kroger's attempt to argue that PETA's statement in its 2006 resolution is false is illogical. Kroger cannot refute PETA's recent statement regarding its lack of animal welfare movement by simply citing an old statement on the issue without also showing factual evidence that it is indeed taking animal welfare seriously or has conducted even one audit at its suppliers' facilities. Therefore, PETA's resolution is not excludable under rule 14a-8(i)(3).

II. Statements in a Shareholder Resolution Are Not False or Misleading Simply Because They Are Not Sourced

In its resolution, PETA references McDonald's report on the feasibility of implementing controlled-atmosphere stunning (CAS) for broiler chickens ("McDonald's report" or "the report"). It also states that "Kroger's competitorsincluding Safeway, Albertsons, and Whole Foodshave made measurable, publicized progress on animal welfare issues ...." In its no-action letter, Kroger asserts that PETA's resolution is excludable as false and misleading under Rule 14a-8(i)(3) because it fails to source either of its statements regarding Kroger's competitors and the McDonald's report.

Kroger's argument is again illogical, because an unsourced statement is not false or misleading simply because it is unsourced. As Kroger should be aware, a false or misleading statement is a material misstatement of a fact or a statement in which the omission of a material fact makes the statement false or misleading.

As reference for Kroger and the Staff, PETA has attached the McDonald's report in its entirety as well as documentation that shows that Kroger's above-mentioned competitors have indeed "made measurable, publicized progress on animal welfare issues." Per the enclosed, this progress includes many examples, such as the following: Albertsons' auditing of a meat supplier that was found to be abusing animals, Safeway's movement toward humane chicken slaughter techniques, and Whole Foods' development of its Animal Compassionate Standards for farmed animals.

Conclusion:

Kroger's argument that PETA's resolution is excludable under Rule 14a-8(i)(3) is insupportable given the company's lack of movementand its competitors' documented and publicized concrete movementon animal welfare issues. Moreover, the Staff's Legal Bulletin No. 14B (September 15, 2004) was designed to rein in the flood of no-action letters based on Rule 14a-8(i)(3). As the Staff noted, "many companies have begun to assert deficiencies in virtually every line of a proposal's supporting statement as a means to justify exclusion of the proposal in its entirety." That, unfortunately, is precisely what Kroger is attempting to do here.

For the foregoing reasons, we respectfully request that the SEC advise the company that it will take enforcement action if it fails to include PETA's proposal in its 2006 Proxy Statement. Please feel free to contact me should you have any questions or require further information. I may be reached directly at MattPrescott@peta.org or 757-943-7460.

Very truly yours,

/s/

Matthew A. Prescott
Manager, Factory Farming Campaigns

PETA

cc: Jill V. McIntosh (via fax: 513-762-4935)

Enclosures: McDonald's report

East Bay Business Times article regarding Albertsons' movement on animal welfare

Press release of February 14, 2006, regarding Safeway's movement toward humane chicken slaughter

Whole Foods' Animal Compassionate Standards for Beef Cattle

[STAFF REPLY LETTER]

April 6, 2006

Response of the Office of Chief Counsel Division of Corporation Finance

Re: The Kroger Company Incoming letter dated February 9, 2006

The proposal requests that the board issue interim reports to shareholders that detail the progress made toward accelerating the development of controlled-atmosphere killing.

We are unable to concur in your view that Kroger may exclude the proposal under rule 14a-8(i)(3). Accordingly, we do not believe that Kroger may omit the proposal from its proxy materials in reliance on rule 14a-8(i)(3).

Sincerely,

/s/

Gregory Belliston
Attorney-Adviser