I egality under antitrust laws of complying with State milk marketing orders The Commission rendered an…

No. 154. I egality under antitrust laws of complying with State milk marketing orders The Commission rendered an advisory opinion that a distributor who complied with a state s milk marketing order fixing the minimum resale prices of dairy products would not be subject to a charge of violating the antitrust laws. The distributor in question did not have a warehouse in the state in question, but shipped dairy products into the state from its warehouses located in neighboring states. In most cases, the price increases required by the order issued pursuant to the state dairy products marketing act would be significant and the distributor sells the same products at substantially lower prices to stores located in the neighboring states because competitive pressures dictate lower prices except where the higher prices are required by Jaw.

The distributor expressed concern that by agreeing to comply with the orders of the state, it would subject itself to possible action under the Sherman Act, the Federal Trade Commission Act, or possibly even the Clayton Act, as amended by the RobinsonPatman Act, since sales will be made at different prices to purchasers in different states of commodities of like grade and qualiy. Hence an opinion was requested as to whether the distributor wiJ be in violation of any of the laws administered by the Commission if it complies with the state laws fixing the minimum resale prices of dairy products.

The Commission advised that it was of the opinion that the distributor would not be subject to a charge of violating any of the laws it administers because of its compliance with the lawful orders of the state as to the minimum resale prices of dairy products. In the Commission s view, it is well settled that the antitrust laws have application to the actions of individuals, partnerships and corporations and not to the activities of a state. While a state may not authorize individuals to perform acts which violate the antitrust laws nor declare that such action is lawful, it may, in the exercise of its sovereign power, itself conduct such regulation of business activities within its borders as its own legislature snaJl properly deem necessary in the public interest. So long as the resulting regulation is a state as opposed to individual activity, those subject to the regulation would not be subject to a charge of ADVISORY OPINION DIGESTS 1057 violating the antitrust laws by reason of their compliance with the state s orders. (File No. 683 7044, released Dec. 22, 1967.