Consumer Law Library

Wine Industry

16 CFR Part 139 · Trade practice rules · in the Code of Federal Regulations 1939-1976 (13 annual editions)

Scanned CFR pages, OCR text may contain errors; the linked Library of Congress PDF is the authority. Not legal advice; not affiliated with the FTC. These rules and guides are historical: most were rescinded or replaced, so do not assume any is in force.

Latest edition: Library of Congress, 1976 CFR · Earliest edition: 1939 CFR

Text (1976 edition, OCR)

Chapter Il—~Federal

ting the purchaser to return the same
for credit or refund of purchase price,
without just cause, creates waste and
loss, increases the cost of doing business
to the detriment of both the industry
and the public, and is condemned by the
industry, subject, however, to require-
ments and limitations set forth im the
provisions of Rule 14 (§ 138.14) of
Group I, and subject also to the general
limitation that members of the industry
shall not engage in any combination or
conspiracy in restraint of trade or use
any other illegal methods in the regula-
tion. control or prevention of the return
of merchandise.

§ 138.102 Maintenance of accurate rec-

ords.

It is the judgment of the industry that
each member should independently keep
proper and accurate records for deter-
mining his costs.

COMMITTEE ON TRADE PRACTICES
§ 138.201 Industry committee.

The provislons of § 16.1 of this sub-
chapter shall be applicable to an industry
committee established under this part.
[21 F.R. 1174, Feb. 21, 1956}

PART 139——WINE INDUSTRY

Group I

Bec.

189.1 Misrepresentation as to character of
business.

139.2 False Invoicing.

189.3 Substitution of products.

139.4 Defamation of competitors or dis-
paragement of their products.

189.5 Imitation of trade-marks, etc.

139.6 Procurement of competitors’ confi-
dential information by unfair
means and wrongful use thereof.

139.7 Threats of suit.

139.8 Inducing breach of contract.

189.9 Enticing away employees of competi-
tors.

189.10 Discrimination.

189.11 Combination or coercion to fix prices, .
suppress competition or restrain
trade.

189.12 Selling below cost.

189.138 Aiding or abetting use of unfair trade
practices.

Group II

139.101 Repudiation of contracts.
189.102 Abuse of buying and selling power,
189.108 Maintenance of accurate records.

Avrnoriry: Sees. 6(g), 5, 38 Stat. 722, 719;
15 U.S.C. 46(g), 45, unless otherwise noted.

Trade Commission § 139.5
Source: 4 FR 2708, June 80, 1939, unless
otherwise noted.

Grovp I

§ 139.1 Misrepresentation as to char-
acter of business.

It is an unfair trade practice for any
person, firm or corporation to represent,
directly or indirectly, that he or it is a
manufacturer, producer or importer of
wines or that he or it owns or controls
a vineyard or vineyards wherein are
grown the fruits from which his or its
wines are produced, when such is not the
fact, or in any other manner to misrep-
resent the character, extent or type of
his or its business. .

§ 139.2 False invoicing.

Withholding from or inserting in in-
voices any statements or information by
reason of which omission or insertion a
false record is made, wholly or in part, of
the transactions represented on the face
of such invoices, with the effect of
thereby misleading or deceiving pur-
chasers, prospective purchasers or the
consuming public, is an unfair trade
practice.

§ 139.3 Substitution of products.

The practice of shipping or delivering
products which do not conform to speci-
fications provided for in the contract or
order or to representations made con-
cerning such products, without the con-
sent of the purchasers to such changes or
substitutions and with the tendency and
capacity or effect of misleading or de-
ceiving purchasers, prospective purchas-
ers or the consuming public, is an unfair
trade practice.

§ 139.4 Defamation of competitors or
disparageinent of their products.

The defamation of competitors by
falsely imputing to then dishonorable
conduct, inability to perform contracts,
questionable credit standing, or by other
false representations, or the false dispar-
agement of the grade, quality or manu-
facture of the products of competitors
or of their business methods, selling
prices, values, credit terms, policies or
services, is an unfair trade practice.

§ 139.5 Initation of trade-marks, etc.

The imitation or simulation of the
trade-marks, trade names, brands or
labels of competitors, with the tendency
and capaclty or effect of misleading or

607


§ 139.6

deceiving purchasers, prospective pur-
cliasers or the consuming public, is an
unfair trade practice.

§ 139.6 Procurement of competitors’
confidential information by unfair
means and wrongful use thereof.

It is an unfair trade practice for any
member of the industry to obtain infor-
mation concerning the business of a com-
petitor, by bribery of an employee or
agent of such competitor, by false or mis-
leading statements or representations, by
the impersonation of one in authority, or
by any other unfair means and to use the
information so obtained in such a man-
ner as to mjure said competitor in his
business or to suppress competition or
unreasonably restrain trade.

§ 139.7 Threats of suit.

The circulation of threats of suit for
infringement of patents or trade-inarks
among customers or prospective cus-
toiners of competitors, not made in good
faith but for the purpose or with the
effect of harassing or mtimidatmg such
customers or prospective customers or of
unduiy hampering, injuring or prej-
udicmg competitors in their businesses,
is an unfair trade practice.

§ 139.8 Induciug breach of contract.

Inducing or attempting to induce the
breach of existmg lawful contracts be-
tween competitors and their customers
or their suppliers by any false or decep-
tive means whatsoever, or interfering
with or obstructing the performance of
any such contractual duties or services
by any such means, with the purpose and
effect of unduly hampering, injuring or
prejudicmg competitors in their busi-
nesses, is an unfair trade practice.

§ 139.9 Enticing away employees of
competitors.

Willfully enticing away the employees
of competitors, with the purpose and ef-
fect of unduly hampering, injuring or
Prejudicing competitors in their busi-
nesses, is an unfair trade practice.

§ 139.10 Discrimination.

(a) Prohibited discriminatory prices,
or rebates, refunds, discounts, credits,
etc., which effect unlawful price discrim-

1 Paragraph (a) of § 139.10 shall not be
construed as embracing practices prohibited
by paragraphs (b), (c) and (d) of this sec-
tion.

Title 16—Commercial Practices

ination. It is an unfair trade practice
for any member of the industry engaged
in commerce, in the course of such com-
merce, to grant or allow, secretly or
openly, directly or indirectly, any rebate,

‘refund, discount, credit, or other form

of price differential, where such re-
bate, refund, discount, credit, or other
form of price differential effects a
discrimination in price between dif-
ferent purchasers of goods of like
grade and quality, where either or any of
the purchases involved therein are in
commerce, and where the effect thereof
may be substantially to lessen competi-
tion or tend to create a monopoly in any
line of commerce, or to injure, destroy, or
prevent competition with any person
who either grants or knowingly receives
the benefit of such discrimination or with
customers of either of them: Provided,
however, (1) That the goods involved in
any such transaction are sold for use,
consumption, or resale within any place
under the jurisdiction of the United
States;

(2) That nothing contained in this
section shall prevent differentials which
make only due allowance for differences
in the cost of manufacture, sale, or deliv-
ery resulting from the differing methods
or quantities in which such commodities
are to such purchasers sold or delivered;

(3) That nothing contained in this
section shall prevent persons engaged in
selling goods, wares, or merchandise in
commerce froin selecting their own cus-
tomers in bona fide transactions and not
in restraint of trade;

(4) That nothing contained in this sec-
tion shall prevent price changes from
time to time where made in response to
changing conditions affecting either (i)
the market for the goods concerned, or
(ii) the marketability of the goods, such
as, but not limited to, actual or immi-
nent deterioration of perishable goods,
obsolescence of seasonal goods, distress
sales under court process, or sales in

- good faith in discontmuance of business

in the goods concerned.

(b) Prohibited brokerage and com-
missions. It is an unfair trade practice
for any member of the industry engaged
in commerce, in the course of such
commerce, to pay or grant, or to receive
or accept, anything of value as a com-
mission, brokerage, or other compensa-
tion, or any allowance or discount in
lieu thereof, except for services rendered
in connection with the sale or purchase
of goods, wares, or merchandise, either

608


Chapter Il——Federal Trade Commission

to the other party to such transaction or
to an agent, representative, or other in-
termediary therein wherein such inter-
mediary is acting in fact or in behalf,
or is subject to the direct or indirect con-
trol, of any party to such transaction
other than the person by whom such
compensation is so granted or paid.

(ec) Prohibited advertising or promo-
tional allowances, etc. It is an unfair
trade practice for any member of the
industry engaged in commerce to pay
or contract for the payment of advertis-
ing or promotional allowances or any
other thing of value to or for the benefit
of a customer of such member in the
course of such commerce as compensa~
tion or in consideration for any services
or facilities furnished by or through
such customer in connection with the
processing, handling, sale, or offering for
sale of any products or commodities
manufactured, sold or offered for sale by
such member, unless such payment or
consideration is available on proportion-
ally equal terms to all other customers
competing in the distribution of such
products or commodities.

(d) Prohibited discriminatory services
or facilities. It is an unfair trade prac-
tice for any member of the industry en-
gaged in commerce to discriminate in
favor of one purchaser against another
purchaser or purchasers of a commodity
bought for resale, with or without proc-
essing, by contracting to furnish or by
furnishing, or by contributing to the fur-
nishing of, any services or facilities con-
nected with the processing, handling,
sale, or offering for sale of such com-
modity so purchased upon terms not ac-
corded to all purchasers on proportion-
ally equal terms.

(e) Inducing or receiving an illegal
discrimination in price. It is an unfair
trade practice for any member of the
industry engaged in commerce, in the
course of such commerce, knowingly to
induce or receive a discrimination in
price which is prohibited by the fore-
going provisions of this section.

(Sec. 2, 88 Stat. 730, as amended, secs. 2, 3, 4,
#9 Stat. 1527, 1528; 15 U.S.C. 18, 13a, 18b,
a

§ 139.11 Combination or coercion to fix
prices, suppress competition or re-
strain trade.

It is an unfair trade practice for any
person, firm, partnership, corporation or
association:

§ 139.101

(a) To use, directly or indirectly, any
form of threat, intimidation or coercion
against any member of the industry to
unlawfully fix, maintain or enhance
prices, suppress competition or restrain

.trade; or

(b) To enter into or take part in, di-
rectly or indirectly, any agreement, un-
derstanding, combination, conspiracy or
concert of action with one or more per- |
sons, firms, partnership, corporations or
associations to fix, maintain or enhance
prices, suppress competition or restrain
trade.

§ 139.12 Selling below cost.

The practice of selling industry prod-
ucts below the seller’s cost, when pur-
sued with wrongful intent of thereby
injuring a competitor and where the ef-
fect of such practice is to unreasonably
restrain trade, tend to create a monopoly,
or substantially lessen competition, is an
unfair trade practice.

This section is not to be construed as
prohibiting all sales below cost, but only
such selling below the seller’s cost as 1s
resorted to and pursued as a monopolls-
tic practice with the wrongful intent re-
ferred to and coupled with the effect
of unreasonably restraining trade, tend-
ing to create a monopoly or substantially
lessening competition. Sales below cost
by a competitor not in a sufficiently
strong competitive position to produce,
and not actually producing, the monopo-
listic or restraining effect mentioned, do
not fall within the inhibitions of this
section.

The costs referred to in this section
are actual costs of the respective seller
and not some other figure or average
costs in the industry, determined by an
industry cost survey or otherwise.

§ 139.13 Aiding or abetting use of un-
fair trade practices.

It is an unfair trade practice for any
person, firm or corporation to aid, abet,
coerce or induce another, directly or in-
directly, to use or promote the use of any
unfair trade practice specified in this
part.

Group It

§ 139.101 Repudiation of contracts.

Lawful contracts are business obliga-
tions which should be performed in letter
and in spirit. The repudiation of con-
tracts by sellers on a rising market, or by
buyers on a declining market, is con-
demned by the industry.

609


§ 139.102

§ 139.102 Abuse of buying and selling
' power.

The use of buying power to force un-
economic or unjust terms of sale upon

sellers, and the use of selling power to,

force uneconomic or unjust terms of sale

upon buyers, are condemned by the

industry.

.§ 139.103 Maintenance of accurate rec-
ords.

It is the judgment of the industry that
each member should independently keep
proper and accurate records for deter-
mining his costs.

PART 140—PUTTY MANUFACTURING

INDUSTRY
Group I
Sec.
140.1 False advertising.
140.2 Deceptive marking, branding, or de-
vices.
140.3 Misrepresentation of vehicle.
140.4 Deceptive concealment,
140.6 Misrepresentation of pigment.
140.6 Misrepresentation of white lead.
140.7. Imitation of trade-marks, trade
names, etc.
140.8 Defamation of competitors or dis-
paragement of their products.
140.9 Commercial bribery.
140.10 False involeing.
140.11 Use of short-weight containers.
140.12 False guarantee.
140.18 Discrimination.

AurTHorITY: Secs. 6(g), 5, 38 Stat. 722, 719;
15 U.S.C. 46(g), 45, unless otherwise noted.

Source: 4 FR 2708, June 30, 1939, unless
otherwise noted.

§ 140.1 False advertising.

Making, or causing to be made or
published, any faise, misleading or de-
ceptive statement or representation, by
way of advertisement or otherwise, con-
cerning the grade, quality, quantity, sub-
stance, character, size, material, content,
origin, preparation, manufacture or dis-
tribution of any industry product, or in
any other material respect, is an unfair
trade practice.

§ 140.2 Deceptive marking, branding,
or devices.

The sale or offering for sale of any
product of the industry by any faise or
deceptive means or device, or the false
or deceptive marking or branding of
products of the industry, with respect to

Title 16—Commercial Practices

the grade, quality, quantity, use, mate-
rial, content, preparation, manufacture
or distribution of such products, or in
any other material respect, is an unfair
trade practice.

§ 140.3 Misrepresentation of vehicle.

The marking, branding, advertising or
representing of any industry product as
“Pure Putty,” “Pure Linseed Putty,”
“Linseed Oil Putty,” or by words, signs,
abbreviations or other representations of
similar import or meaning, as descrip-
tive of putty the vehicle of which is not
composed wholly of pure linseed oil, is an
unfair trade practice. Nothing in this
section, however, shall be construed as
prohibiting the use in such putty of nec-
essary or desirable amounts of drier:
Provided, The presence of such drier is
fully and nondeceptively disclosed on the
label and purchasers of the putty are
informed of such content of drier.

§ 140.4 Deceptive concealment.

(a) In the case of wood sash putty, in
which mineral or other oils are used in
the vehicle as an adulterant or as a sub-
stitute for linseed oil, in whole or in part,
it is an unfair trade practice to conceal
or fail or refuse to disclose the presence
of such adulterant or substitute oils, with
the capacity and tendency or effect of
thereby misleading or deceviing the pur-
chasing or consuming public.

(b) Nondisclosure, or concealment
from purchasers, of any ingredient of a
product offered for sale or sold as or for
putty where such nondisclosure or con-
cealment is practiced by the seller with
the tendency and capacity or effect of
thereby misleading or deceiving the pur-
chasing or consuming public, is an unfair
trade practice.

§ 140.5 . Misrepresentation of pigment.

The marking, branding, advertising or
representing of any industry product as
“Chalk Putty,” “Chalk Whiting Putty”
or “True Chalk Whiting Putty,” or by
words, signs, abbreviations or other rep-
resentations of simllar import or mean-
ing, as descriptive of putty the pigment
of which is not composed wholly of pure
chalk whiting, is an unfair trade practice.

§ 140.6 Misrepresentation of white lead.

It is an unfair trade practice, directly
or by Implication, to advertise, describe,
mark, brand, label or otherwise repre-
sent any putty (a) as containing white
lead when such is not the fact; or (b) as

610