Super-marketing services spo)/sors product sponsor amsco sponges amerlca.'" spoi"ge & chamois co. Aunt jane…

1414 FEDERAL TRADE COMMISSION DECISIOKS

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SUPER-MARKETING SERVICES SPO)/SORS PRODUCT SPONSOR AMSCO SPONGES AMERlCA.'" SPOI"GE & CHAMOIS CO. AUNT JANE PICKLES AUN lAAr. DrY. BORDEN CO. AVSHS PRODUCTS JAMS AUSTIN CO. BANQUET FROZES FOODS BANQI.;ET CA."-NI"'G CO. BEECH NUT BABY fOODS BEECH NU LIFESAVERS , J!\C. BERIO OLIVE OIL FlLLIPO BERIO OLIVE OIL CO. BERTOLLI OLIVE OIL BERTOLLI TRAING CORP. BREAST O-CHJCKE!'; TL WESTGATE CALIFORllA PRODUCTS CO. BRYLCREAM BEECHA.\. PRODL'CTS CO. CATS PRIDE CAT urrER BANQUET CA. G CO. COCA COLA COCA COLA eOMPA COMSTOCK PIE FILLP.GS COMSTOCK DIV. BORDEN CO. CONTINENTAL BAKlNG CQ, BRAL;.' BAKERY DIY. DAD S DOG FOOD DAD S PRODUCTS CO. DAILY REFRIGERATED JUICES DAILY JUICE CO. DIAMOND CRYSTAL SALT DIAMOND CRYSTAL SALT CO. EASY MONDAY CLEANI;'' G PRODUCTS BLUF MAGIC CO. FIRCH BAKl:\'G CO. PRIATE LABEL BAKERY PRODUCTS FISHER & CHEFS DELIGHT FISHER CHEESE CO. FLAVOR HOUSE 1'lJS FLA YOR HOUSE NU CO. FRESHLIKE VFGETABLES LASEN & CO. GEORGIA PACIFIC PAPER PRODUC-- GEORGIA PACIFIC CO. GRASS (MRS. ) SOUPS GRASS NOODLE CO. GULF BELLE SHRIMPS SOUTHLA."'D CAA'/''ING CO. GULFSPRA Y r""SECTICIDES GULF OIL CORP. HERB OX Bt:ILLION ceBES PL"RE FOODS CO. HQRMEL MEAT PRODUCTS GEO. A. HOR.\iEL & CO. HYGRAE DAIRY CO. PRlV A l'E G\BEL BU1R JOV DOG FOOD BEST FEEDS CO. KAL KAN DOG FOODS KA KA'" FOODS KING COFFEE FILTERS KING COFFEE FJLTERS CO. KING COLE v'EGETABLES DRAER-KlNG COLE CO. KLEEN Kl1TY CAT LITTER PRIDE OF Y ALLEY , INC. LOTTA COLA & REGENT BEVERAGES REGENT BOTILING CO. ORDIC SEA fOODS LIVE FISH CO. PFIEFFER SALAD DRESSINGS PFEJFFER FOODS PURITY CHEESE PURITY CHEESE CO. RAGU SPAGHETTI SACCES RAGU PACKNG CO. RlCIiS FROZEN FOODS RICH PRODCCTS CO. RICE A RO:-' POREA SALES CO. STERLISG SALT ISTERNATIONAL SALT CO. SUE BEE HOSEY SOUlx HO EY ASSN. SWIFT CA)''NED MEATS SWlFT & CO. TETLEY TEA TETl.EY DIY. BEECH NU WILSOl\ CA. D MEATS WILSON & CO. ADVISORY OPE,rONS 1415

Tripartite Promotional Assistance Program (See 79 F. C. 1040 for opinion letter; revoked Sept. 11, 1973, 83 F. C. 1839. File No. 7137027, release February 6, 1976.

Opinion utter

January 29 , 1976 Dear Mr. Kintner:

This is in response to your request that the Commission reconsider its October 5, 1973 revocation of the advisory opinion issued to MARPOS on September 3, 1971, and that that advisory opinion be reinstated. The Commission has given very careful consideration to your request. At issue, essentiaJly, is whether the tripartite promotional assistance plan offcred by MARPOS , which provides payments to participating retailcrs on the basis of the number of cash register transactions realized by such stores, assures payments and services on proportionally equal terms to aJi competing customers as required by the applicable provisions of Section 2 of the Clayton Act, as amended by the Robinson-Patman Act.

The Commission s 1973 revocation of the MARPOS program resulted from a rcexamination of that program in light of the Commission Guides , as amended August 4, 1972. The payment plan, as this rcexamination disclosed, permits suhstantially unequal payments to competing retail customers, if and when there are substantial differences among and between such customers relative to size or aggregate product sales and, hence, established customer patronagc. , as a matter of exampJe, competing retailers " and "B" are assumed to be participants under the subjcct program and thc annual numbcr of cash register transactions recording aggregate product sales by store " " reflects a lcvel ten times higher than that of storc " store "A" may receive ten times the compensation available to store "B" in providing the identical facility or servicc. Store " becausc its overall product sales are less, is denied a proportionaJly equal payment under the program, even if its resales of the promoted product arc comparable. The lower payments that store "B" is elii,riblc to rcceivc, thus, bear no relationship to the quantities of the promoted products it may handle; no relationship to the amount of advertising space it provides (or to the extent of mechanical display facilities involved); and no relationship to the direct or indirect costs attributable to any or aJi such facilities. Such a payment plan clearly gives largc buyers a discriminatory preference over smaller ones. A maximum payment limitation of $1500 for 500 000 or more cash register transactions together with a minimum payment of $12. , does not

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serve to neutralize the disproportionality of this payment plan, as so anaJyzed.

The Commission has noted your particular refcrence, in conjunction with the subject request, to Advisory Opinion No. 88. You are advised that Advisory Opinion No, 88. File No. 663 7022, was withdrawn by the Commission June 29 1972, press release dated July 7 1972. The Commission has concluded that the advisory opinion issued to MARros on Septembcr 3 , 1971, revoked by notice of October 5, 1973 should not be reinstated.

By direction of the Commission.

Lctwr of Request