Three-party promotional assistance plans

No. 3. Three-party promotional assistance plans. The Commission was again requested to express an opinion with respect to the legality oi payments by toy manufacturers ior advertising in toy catalogs published by a firm which, assertedly, (1) is strictly a publisher and has no connection whatever with any toy jobber or manufacturer, and (2) affrmatively ofIered the catalogs for sale to a1l jobbers.

With respect to this request, the Commission repeated its previous opinion which was published October 30, 1964 (66 F. C. 1594J, as fo1lows:

Payments for advertising in a catalog published by a firm which is not owned or contro1led by, or in any way directly or indirectly affliated with, any customer of the advertiser or group or class of such customers, do not violate Section 2(d) of the Clayton Act where no discriminatory benefit is conierred by such payments on a particular customer, or class or group of customers, over competitors. The Commission notes your statement that your catalogs arc available at low cost to all toy jobbers and are not designed to be usable only by particular jobbers, or classes oi groups of jobbers; that you make every efTort to distribute your catalogs as broadly as possible among toy jobbers; and that you do not limit distribution to any particular jobbers or group or class of jobbers. The Commission is oi the opinion that if your catalogs, however titled , are available , in a practical business sense , to a1l 'of the jobber customers of a manufacturer, then no objection could be raised to payments by that manufacturer for advertising in the catalogs.

To obviate any possible misunderstanding, the Commission corrected an erroneous statement in the requesting party s communication to the efIect that the Commission s previous opinion had ruled that since the catalogs were available in a practical business sense to a1l jobber customers of the manuiacturers the payments would

In conformity with PQlicy of the Commission , advj ory opinions are confidential and are not aVOIilRble to the public, only digests of advi50ry opinions are of public record. Digests of advisory opinions are currently published in the Federal Register. 1268 FEDERAL TRADE COMMISSION' DECISIONS not be objectionable. The Commission advised the requesting party that the opinion set forth above and all previous Commission opinions ruling on this precise question have clearly stated that the payments would not be objectionable if the catalogs were available in a practical business sense to all jobbers. The Commission made no finding in its previous opinions that the catalogs were in fact available to all jobbers since such information was not available to it. Instead, the previous opinions simply took the position that the payments would not be iJegal if the catalogs were actually so available. (File No. 653 7061 , released Oct . 12 , 1965.