The Sweets Company of America, Inc.

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IN THE MATTER OF THE SWEETS COMPANY OF AMERICA, INC.

CONSENT ORDER, ETC., IN REGARD TO THE ALLEGED VIOLATION OF SEC. 2 (d) OF THE CLAYTON ACT Docket 6-460. Complaint, Nov. 21, 1955-Decision, Nov. , 1957 Consent order requiring a candy manufacturer in Hoboken, N. , to cease violating Sec. 2 (d) of the Clayton Act by making special allowances to certain customers-such as those granted for promotion of anniversary sales to food chains in Philadelphia, Pa., and 'Vashington, D. -without making them available to competing customers on proportionally equal terms. CO~IPLAINT The Federal Trade Commission, having reason to believe that the party respondent named in the caption hereof, and hereinafter more particularly described, has violated the provisions of subsection (d) of Section 2 of the Clayton Act (U. C. Title 15 , Sec. 13), as amended by the Robinson-Patman Act, hereby issues its complaint stating its charges with respect thereto as follows: P ARAGRAPI-I 1. Respondent, The Sweets Company of America, Inc. is a corporation organized, existing and doing business under and by virtue of the laws of the State of Virginia, with its office and princi pal place of business located at Hoboken, New Jersey. PAR. 2. Respondent is now and has been engaged in the manufacture, sale and distribution of candy products, the principal ones of which are sold under the trade name "Tootsie. Respondent sells its candy products through brokers, distributors, and direct to retail customers, including retail chain store organizations. Sales made by respondent of its products are substantial amounting in the year 1954 to $12 486 065.

PAR. 3. In the course and conduct of its business respondent has engaged and is now engaging in commerce., as "commerce" is defined in the Clayton Act as amended. Respondent sells and causes its products to be transported from the respondent's principal place of business, located in New Jersey, to customers located in other States of the United States and in the District of Columbia. PAIl. 4. In the course and conduct of its business in commerce respondent paid or eontracted for the payment of something of value to or for the benefit of some of its customers as compensation or in consideration for services or facilities furnished by or through such customers in connection with their offering for sale or sale of products sold to them by respondent, and such payments were not made THE SWEETS CO. OF AMERICA, INC. 535 534 Decision available on proportionally equal terms to all other customers competing in the sale and distribution of respondent's products. PAR. 5. For example, during the year 1955 respondent contracted to pay and did pay the sum of $800 to the Food Fair Stores, Inc. of Philadelphia; Pennsylvania, and $100 to the Giant Food Shopping Center, Inc. , of ",Vashington, D. , as compensation or as an allowance for advertising or other service or facility furnished for sale or sale of products sold them by the respondent. Such compensation or allowances were not offered or otherwise made available by respondent on proportionally equal terms to all other custon'lers competing in the sale and distribution of respondent' products with Food Fair Stores, Inc., or Giant Food Shopping practices of respondent as alleg~d above PAR. 6. The.center, Inc.acts and violate subsection (d) of Section 2 of the Clayton Act, as amended by the Robinson-Patman Act.

11f Goodhope and IIf r. Fredric T. Suss for the r. A ndre'W O. Commission.

Becke?' , Rose Stone by IIfr. lIfurray G. Becker of New York , for respondent.

INITIAL DECISION BY FRANK I-IIER, I-IEARING EXAMINER Pursuant to the provisions of subsection (d) of Section 2 of the Clayton Act (D. C. Title 15, Sec. 13), as amended by the Robinson- Patman Act, the Federal Trade Commission on November 21 , 1955 issued and subsequently served its complaint in this proceeding against respondent The Sweets Company of America, Inc. , a corporation existing and doing business under and by virtue of the laws of the State. of Virginia, with its office and principal place of business located at Hoboken, New Jersey.

One hearing was held after which there was, on September 6 1957, submitted to the undersigned hearipg examiner an agreement between respondent and counsel supporting the complaint providing for the entry of a consent order. By the terms of said agreement, respondent admits all the jurisdictional facts alleged in the complaint and agrees that the record may be taken as if findings of jurisdictional facts had been duly made in accordance with such allegations. By such agreement, respondent waives any further procedural steps before the hearing examiner and the Commission; waives the making of findings of fact and conclusions of law; and waives all of the rights it may have to challenge or contest the validity of the order to cease and desist entered in accordance with Order 54 F.

this agreement. Such agreement rurther provides that it disposes or all of this proceeding as to all parties; and that the record on which this initial decision and the decision of the Commission shall be based shall consist solely or the complaint and this agreement; that the latter shall not become a part or the official record unless and until it becomes a part or the decision or the Commission; that the agreement is ror settlement purposes only and does not constitute an adinission by respondent that it has violated the law alleged in the complaint; and that the following order to cease and desist may be entered in this proceeding by the Commission without further notice to respondent, and, when so entered, it shall have the same rorce and effect as ir entered alter a rull hearing, and may be altered, modified, or set aside in the manner provided ror other orders; and that the complaint may be used in construing the terms or the order.

The hearing examiner having considered the agreement and proposed order, and being or the opinion that they provide an appropriate basis ror settlement and disposition or this proceeding, the agreement is hereby accepted, the following jurisdictional findings made, and the following order issued.

1. Respondent The Sweets Company of America, Inc. , is a corporation existing and doing business under the laws or the State or Virginia, with its office and principal place or business located at Hoboken, New Jersey.

2. The Federal Trade Commission has jurisdiction of the subject matter or this proceeding and of the respondent. ORDER is ordered That respondent The Sweets Company or America Inc. , a corporation, its officers, employees, agents, and representain or intives, directly or through any corporate . or other device, connection with the sale of candy and other products in commerce as "commerce" is defined in the aforesaid Clayton Act, as amended do rorthwith cease and desist from:

~Iaking or contracting to make, to or for the benefit of any customer, any payment of anything of value as compensation or in consideration for any advertising or other services or facilities rurnished by or through such customer, in connection with the handling, offering for resale, or resale of candy and other products sold to him by respondent, unless such payment is affirmatively offered or othenvise made available on proportionally equal terms to all other customers competing in the distribution or resale of such candy and other prodnets.

THE SWEETS CO. OF AMERICA, INC. 537 534 Decision DECISION OF THE COMMISSION AND ORDER TO FILE REPORT OF COMPLIANCE Pursuant to Sec. 3.21 of the Comrmssion s Rules of Practice, the initial decision of the hearing examiner did, on the 7th day of November, 1957, become the decision of the Commission; and accordingly:

It is ordered That the respondent herein shall, within sixty (60) days after service upon it of this order, file with the Commission a report in writing setting forth in detail the manner and form in which it has complied with the order to cease and desist. , 538 FEDERAL T'TRADE COMMISSION DECISIONS Decision 54 F.