Newspapers right to reject advertising

No. 93. Newspapers right to reject advertising. The Commission was requested to render an advisory opinion with respect to the right of a newspaper to reject advertising which it regarded as false and misleading. WhiJe the question propounded involved the right of the paper to reject an advertisement by an automobile dealer which impliedly represented that a used car in its stock was a repossession when it was not the Commission noted that the question presented went far beyond the fate of the particular advertisement and involved the basic question of whether or not a newspaper has the right under the antitrust laws to reject advertisements which are submitted to it for publication.

The Commission further noted the fact that the newspaper which is in open competition with other newspapers in the same area, is acting in accord with the exercise of its own independent judgment and not in concert with others in proposing to reject the particular advertisement.

Under these circumstances , the Commission advised that eould see no obj ection to the exercise by the newspaper of its right to refuse to accept the advertisement. (File No. 663 7062 released Oct. 13, 1966.

!'o. 94. Promotional assistance plans must be reasonable and nondiscriminatory.

The Commission recently issued an advisory opinion regarding the obligations of a supplier in offering alternatives to his basic plan for providing promotional assistance to his eompeting, retailer-customers by placing advertisements on shopping carts. The requesting party, a promoter, had a basic promotional assistance plan which some competing retailer-customers of suppliers partieipating in the plan were functionally unable to use because the retailer-customers did not have or use shopping carts. The plan provided that sueh competing retailer-customers were to bc offered a reasonably usable alternative way of obtaining the proportionally equal assistance to which they are entitled under the provisions of Sections 2 (d) and (e) of the RobinsonPatman amendment to the Clayton Act. The question presented was \vhether a retailer-customer, whose business operation was such that he was functionally able to use and benefit from the basic-shopping cart-plan could demand the alternative form of assistance, if he so desired. In its opinion , the Commission stated that whether a supplier s promotional assistance plans are reasonable and nondiscriminatory in their application is essential1y a question of fact. The Commission held that if the retailer-customer was able , in fact, to use and benefit from the basic plan oftered, but rejected same, the supplier need not ofter such retailer-customer the alternative plan. The Commission pointed out that the burden of proof on this issue of fact as it may arise in particular cases wi1 rest upon the supplier. The Commission added that if a eompeting retailer-customer is unable to use the basic plan because of the nature of his business operation, he must be oftered an alternative plan. However, if he rejects the alternative plan for reasons of his own and said plan could be reasonably used to his benefit, then, the supplier would incur no liability for declining to ofter another alternative. (File o. 663 7037 released Oct. 18, 1966.

Modified July 11 , 1968, 69 F. C. 1211.