Tuna Industry
16 CFR Part 146 · Trade practice rules · in the Code of Federal Regulations 1943-1978 (16 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 These rules and guides are historical: most were rescinded or replaced, so do not assume any is in force.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, 1978 CFR · Earliest edition: 1943 CFR
Text (1978 edition, OCR)
Chapter I—Federal Trade Cammissian price which is prohibited by the fore- going provisions of this section. (f) Exemptions. The inhibitions of this section shall not apply to pur- chases of their supplies for their own use by schools, colleges, universities, public libraries, churches, hospitals, and charitable institutions not operat- ed for profit. Note: In complaint proceedings charging discrimination in price or services or facili- ties furnished, and upon proof having been made of such discrimination, the burden of rebutting the prima facie case thus made by showing justification shall be upon the person charged; and unless justification shall be affirmatively shown, the Commis- sion is authorized to issue an order termi- nating the discrimination: Provided, howev- er, That nothing contained in this section shall prevent a seller rebutting the prima facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor. See sec- tion 2-b, Clayton Act. PART 146—TUNA INDUSTRY Group I Sec. 146.1 Definitions. 146.2 Deceptive designations. 146.3 Deceptive concealment of species and quality. 146.4 Misuse of terms “extra select,” etc. 146.5 Misrepresentation of industry prod- ucts in general. 146.6 Deceptive depictions in general. 146.7 Misuse of term ‘“‘Tonno,” foreign in- “extra fancy,” signia, etc. 146.8 Imitation of trade-marks, trade names, etc. 146.9 Use of slack-filled or short-weight containers. 146.10 Defamation of competitors or dis- paragement of their products. 146.11 Substituting inferior products for those ordered. 146.12 Misuse of word “free.” 146.13 Fictitious prices. 146.14 False invoicing. 146.15 inducing breach of contract. 146.16 Commercial bribery. 146.17 Enticing away employees of com- petitors. 146.18 Unfair threats of infringement suits. 146.19 Consignment distribution. 146.20 Selling below cost. § 146.1 Sec. 146.21 Discrimination. 146.22 Unlawful interference with raw ma- terial purchases. 146.23 Aiding or abetting use of unfair trade practices. Group II 146.101 Cost records. 146.102 Repudiation or cancellation of con- tracts. COMMITTEE ON TRADE PRACTICES 146.201 Industry committee. AvuTHority: Secs. 6(g), 5, 38 Stat. 722, 719; 15 U.S.C. 46(g), 45, unless otherwise noted. Source: 10 FR 7568, June 23, 1945, unless otherwise noted. Group I § 146.1 Definitions. For the purpose of this part and in its application the following defini- tions respecting canned tuna and canned tuna products shall apply: (a) Fancy tuna. (1) The term “fancy tuna” as herein used shall be deemed to be the descriptive term for choice cuts of cooked tuna, from fish weigh- ing not more than sixty (60) pounds round weight, packed in cans with large pieces of solid meat and with one or two small pieces of solid meat added, if necessary, to bring the con- tents up to required net weight, but not including any flakes (nor any grated or shredded tuna) added at the time of packing. (2) The term “fancy white meat tuna” as used in this section shall be deemed to be the descriptive term for like choice cuts of albacore (Germo alalunga) packed in the saine manner. (3) The expression “choice cuts” means large choice pieces of cooked tuna composed of tender solid meat of selected light color and fine texture, and free from dark meat, bones, skin, extraneous tissue, debris, and any sub- stance or condition impairing quality. (b) Standard tuna. (1) The term “standard tuna” as used in this section shall be deemed to be the descriptive term for wholesome cooked tuna meat, not restricted as to size of fish, which when packed contains at least 75 per- cent large pieces of solid meat and is free from dark meat, bones, skin, ex- traneous tissue, and debris. 447 § 146.2 (2) The term ‘Standard white meat tuna” as herein used shall be deemed to be the descriptive term for like large pieces of wholesome solid alba- core (Germo alalunga), packed in the same manner and free from dark meat, bones, skin, extraneous tissue, and debris. (c) Grated or shredded tuna. (1) The term “grated tuna” or “shredded tuna” as used in this section shall be deemed to be the descriptive term for small uniform pieces of wholesome cooked tuna meat produced in this form by a mechanical process. The pieces shall be free from dark meat, bones, skin, extraneous tissue, and debris, and tuna meat used for this type of pack shall be of a kmd and quality at least equal to that employed in packing ‘standard tuna” as de- scribed in paragraph (b)(1) of this sec- tion. (2) The term “grated white meat tuna” or “shredded white meat tuna” as used in this section shall be deemed to be the descriptive term for like small uniform pieces of wholesome cooked albacore (Germo alalunga), prepared and packed in the same manner, and free from dark meat, bones, skin, extraneous tissue, and debris. The tuna meat used shall be of a kind and quality at least equal to that employed in packing “standard white meat tuna” as described in para- graph (b)(2) of this section. (d) Tuna flakes. (1) The term “tuna flakes” or ‘‘flakes’’ as used m this sec- tion shall be deemed to be the descrip- tive term for small pieces of whole- some cooked tuna meat from the whole tuna, or from parts of tuna, not utilized in the packmg of fancy or standard grades of tuna but free from dark meat, bones, skin, extraneous tissue, and debris. (2) The term ‘‘white meat flakes” as used in this section shall be deemed to be the descriptive term for like small pieces of wholesome cooked albacore (Germo alalunga), packed in the same manner and free from dark meat, bones, skin, extraneous tissue, and debris. (e) Fishes classed as tuna. The fol- lowing species shall be deemed to be “tuna”: (1) Germo alalunga (Albacore). Title 16—Commercial Practices (2) Neothunnus macropterus (Yellow-fin). (3) Thunnus thynnus (Bluefin). (4) Katsuwonus pelamis (Striped Tuna, Skipjack, or Aku). (5) Thunnus orientalis (Oriental Tuna). § 146.2 Deceptive designations. It is an unfair trade practice to sell, offer for sale, advertise, describe, or otherwise represent, directly or indi- rectly, any industry product as “fancy tuna,” “fancy white meat tuna,” “stan- dard tuna,’ ‘standard white meat tuna,” “grated tuna,” ‘shredded tuna,” “grated white meat tuna,” “shredded white meat tuna,” “tuna flakes,” ‘‘flakes,” ‘“‘white meat flakes,” or by similar designation, when such product does not conform to the defi- nitions set out in § 146.1. § 146.3 Deceptive concealment of species and quality. In advertising, describing, represent- ing, offering for sale or selling canned tuna or canned tuna products, it is an unfair trade practice to deceptively conceal or fail or refuse to disclose the species of tuna used in the product and the grade or quality thereof, or to conceal or fail or refuse to disclose any other material fact respecting the product, where such concealment or nondisclosure is practiced with the ca- pacity and tendency or effect of there- by misleading or deceiving the pur- chasing or consuming public. § 146.4 Misuse of terms “extra fancy,” “extra select,” etc. It is an unfair trade practice to sell, offer for sale, advertise, describe, or otherwise represent any canned tuna or canned tuna product as “extra fancy,” “extra select,” “extra select fancy,” “extra fancy fillet,’ “extra quality,” “de iuxe fancy,” “de luxe,” “select,” “choice,” or by similar desig- nation or other representation, with the capacity and tendency or effect of misleading or deceiving the purchas- ing or consuming public into the belief that such canned tuna or canned tuna product is of a quality superior to either the fancy grade or the standard grade of tuna, or to some other grade, kind, or character of tuna, when such 448 Chapter i—Federal Trade Commission is not true in fact; or into any other erroneous belief. § 146.5 Misrepresentation of products in general. The practice of selling, advertising, describing, or otherwise representing canned tuna or canned tuna products in a manner which is calculated to mislead or deceive or has the capacity and tendency or effect of misleading or deceiving the purchasing or con- suming public with respect to the spe- cies of tuna contained therein, or with respect to the character, nature, con- tent, brand, grade, quality, quantity, origin, substance, material, size, prep- aration, packing, distribution, or man- ufacture of such products, or ingredi- ents thereof, or in any other material respect, is an unfair trade practice. industry § 146.6 Deceptive depictions in general. It is an unfair trade practice to use in relation to industry products any photograph, cut, engraving, insignia, design, illustration, or pictorial or other depiction or device (in catalogs, sales literature, advertisements, or other representations) which has the capacity and tendency or effect of mis- leading or deceiving the purchasing or consuming public respecting the spe- cies of tuna packed, or respecting the character, nature, content, brand, grade, quality, quantity, origin, sub- stance, material, size, preparation, packing, distribution, or manufacture of any products of the industry, or in- gredients thereof; or which is false, misleading, or deceptive in any other respect. § 146.7 Misuse of term “Tonno,” foreign insignia, etc. (a) It is an unfair trade practice to use the term “Tonno,” or designation of similar import, as descriptive of canned tuna or canned tuna products when such products are not composed of tuna meat in large solid pieces packed with olive oil and salt. This shall not be construed as excluding the addition of one or two small pieces of solid meat where necessary to bring the contents up to the required net weight. No flakes (nor any grated or shredded tuna), however, shall be added at the time of packing, and the § 146.10 product as packed shall be free from dark meat, bones, skin, extraneous tissue, and debris. (b) It is also an unfair trade practice to use such term “Tonno,” or designa- tion of similar import, or any pictorial or other representations, foreign insig- nia or insignia indicating foreign origin, or foreign words, phrases, or other devices, in such manner as to have the capacity and tendency or effect (1) of confusing, misleading, or deceiving the purchasing or consum- ing public into the belief that the tuna in the product so described or referred to is from waters off the coast of Italy or other foreign country, or that such product is packed in or imported from Italy or other foreign country, when such is not the fact; or (2) of confus- ing, misleading, or deceiving the pur- chasing or consuming public into any other erroneous belief. § 146.8 Imitation of trade-marks, trade names, etc. The imitation or simulation of the trade-marks, trade names, brands, or labels of competitors, with the capac- ity and tendency or effect of mislead- ing or deceiving the purchasing or con- suming public is an unfair trade prac- tice. § 146.9 Use of slack-filled or short-weight containers. It is an unfair trade practice to sell, advertise, describe, or otherwise repre- sent, canned tuna or canned tuna products packed in slack-filled or -short-weight containers, or packed in odd-size containers simulating in size or shape standard sized or shaped con- tainers which are known to the public as standard containers of definite ca- pacity, with the capacity and tendency or effect of misleading or deceiving the purchasing or consuming public as to the contents of such containers or the amount of tuna products con- tained therein; or which are packed in containers so made, formed or filled as to be otherwise misleading. § 146.10 Defamation of competitors or dis- paragement of their products. The defamation of competitors by falsely imputing to them dishonorable conduct, inability to perform con- 449 § 146.11 tracts, questionable credit standing, or by other false representations, or the false disparagement of the grade, qual- ity, or manufacture of the products of competitors, or of their business meth- ods, selling prices, values, credit terms, policies, or services, is an unfair trade practice. § 146.11 Substituting inferior products for tbose ordered. The practice of using or substituting any product of the industry inferior in grade or quality to that specified by the purchaser, without the consent of said purchasers to such use or substi- tution, or with the capacity and ten- dency or effect of otherwise inislead- ing or deceiving the purchasing or con- suming public, is an unfair trade prac- tice. § 146.12 Misuse of word “free.” The use of the word ‘“‘free,’”’ or the equivalent thereof, when the article is in fact not free, with the capacity or tendency to mislead. or deceive the purchasing or consuming public, is an unfair trade practice. § 146.13 Fictitious prices. Offering canned tuna or canned tuna products for sale at prices pur- ported to be reduced from what are in fact fictitious prices, or offering such products for sale at a purported reduc- tion in price when such purported re- duction is in fact fictitious, with the capacity and tendency or effect of mis- leading or deceiving the purchasing or consuming public, is an unfair trade practice. § 146.14 False invoicing. Withholding from or inserting in an invoice, billing, or statement any ma- terial information by reason of which omission or insertion a false record is made, wholly or in part, of the trans- action which such invoice or billing or statement purports to represent, with the effect of thereby misleading or de- ceiving the purchasing or consuming public, is an unfair trade practice. § 146.15 Inducing breach of contract. Inducing or attempting to induce the breach of existing lawful contracts between competitors and their custom- Title 16—Commercial Practices ers or their suppliers by any false or deceptive means whatsoever, or inter- fering with or obstructing the perfor- mance of any such contractual duties or services by any such means, with the purpose and effect of unduly ham- pering, injuring, or prejudicing com- petitors in their businesses is an unfair trade practice. § 146.16 Commercial bribery. It is an unfair trade practice for a member of the industry, directly or in- directly, to give, or offer to give, or permit or cause to be given, money or anything of value to agents, employ- ees, or representatives of customers or prospective customers, or to agents, employees, or representatives of com- petitors’ customers or prospective cus- tomers, without the knowledge of their employers or principals, as an in- ducement to influence their employers or principals to purchase or contract to purchase products manufactured or sold by such industry member or the maker of such gift or offer, or to influ- ence such employers or principals to refrain from dealing in the products of competitors or from dealing or con- tracting to deal with competitors. § 146.17 Enticing away employees of com- petitors. Willfully enticing away the employ- ees of competitors with the purpose and effect of unduly hampering, injur- ing, or prejudicing competitors in their businesses is an unfair trade practice. § 146.18 Unfair tbreats of infringement suits. The circulation of threats of suit for infringement of patents or trade- marks among customers or prospective customers of competitors, not made in good faith but for the purpose or with the effect of harassing or intimidating such customers or prospective custom- ers, or of unduly hampering, injuring, or prejudicing competitors in their businesses, is an unfair trade practice. § 146.19 Consignment distribution. It is an unfair trade practice for any member of the industry to employ the practice of shipping industry products on consignment or pretended consign- ment for the purpose and with the 450 . Chapter I—Federal Trade Commission effect of artificially clogging or closing trade outlets and unduly restricting competitors’ use of said trade outlets in getting their products to consumers through regular channels of distribu- tion, thereby injuring, destroying, or preventing competition or tending to create a monopoly or to unreasonably restram trade. Nothing in this rule shall be construed as restricting or preventing consignment shipping or marketing of imdustry products in good faith where suppression of com- petition, restraint of trade, or undue interference with competitors’ use of the usual channels of distribution is not effected. § 146.20 Selling below cost. The practice of selling industry products below the seller’s cost, when pursued with wrongful intent or there- by injuring a competitor and where the effect of such practice is to unrea- sonably restrain trade tend to create a monopoly, or substantially lessen com- petition, 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 is resorted to and pursued as a monopolistic practice with the wrong- ful intent referred to and coupled with the effect of unreasonably restraining trade, tending to create a monopoly, or substantially lessening competition. Sales below cost by a competitor not in a sufficiently strong competitive po- sition to produce, and not actually producing, the monopolistic or re- straining 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. § 146.21 Discrimination. (a) Prohibited discriminatory prices, or rebates, refunds, discounts, credits, etc., which effect unlawful price dis- crimination. It is an unfair trade prac- tice for any member of the industry engaged in commerce, in the course of such commerce, to grant or allow, se- cretly or openly, directly or indirectly, any rebate, refund, discount, or credit, or the granting of free goods, or other § 146.21 form of price differential, where such rebate, refund, discount, or credit, or the granting of free goods, or other form of price differential, effects a dis- crimination in price between different purchasers of goods of like grade and quality, where either or any of the purchases involved therein are in com- merce, and where the effect thereof may be substantially to lessen compe- tition or tend to create a monopoly in any line of commerce, or to injure, de- stroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimi- nation, 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 ju- risdiction 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 delivery resulting from the dif- fering methods or quantities in which such commodities are to such purchas- ers sold or delivered; : (3) That nothing contained in this section shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade; (4) That nothing contained in this section shall prevent price changes from time to time where made in re- sponse to changing conditions affect- ing either (i) the market for the goods concerned, or (ii) the marketability of the goods, such as but not limited to, actual or imminent deterioration of perishable goods, obsolescence of sea- sonal goods, distress sales under court process, or sales in good faith in dis- continuance of business in the goods concerned. (b) Prohibited brokerage and com- missions. It is an unfair trade practice for any member of the industry en- gaged in commerce, in the course of such commerce, to pay or grant, or to receive or accept, anything of value as a commission, brokerage, or other compensation, or any allowance or dis- count in lieu thereof, except for ser- vices rendered in connection with the sale or purchase of goods, wares, or 451 § 146.22 merchandise, either to the other party to such transaction or to an agent, representative, or other intermediary therein where such intermediary is acting in fact for 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. (c) 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 adver- tising 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 compensation or in consideration for any services or facilities furnished by or through such customer in connec- tion with the processing, handling, sale, or offering for sale of any prod- ucts or commodities manufactured, sold, or offered for sale by such member, unless such payment or con- sideration is available on proportional- ly equal terms to all other customers competing in the distribution of such products or commodities. (da) Prohibited discriminatory ser- vices or facilities. It is an unfair trade practice for any member of the indus- try to discriminate in favor of one pur- chaser against another purchaser or purchasers of a commodity bought for resale, with or without processing, by contracting to furnish or furnishing, or by contributing to the furnishmg of, any services or facilities connected with the processing, handling, sale, or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on preportionally 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. (f) Purchases by sehools, colleges, universities, public libraries, churches, hospitals, and charitable institutions not operated for profit. The foregomg provisions of this section relate tc practices within the purview of the Title 16—Commercial Practices Robinson-Patman Antidiscrimination Act, which act and the application thereunder of this section are subject to the limitations expressed in the amendment to such Robinson-Patman Antidiscrimination Act, which amend- ment was approved May 26, 1938, and reads as follows: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That noth- ing in the act approved June 19, 1936 (Public, Numbered 692, Seventy-fourth Con- gress, second session), known as the Robin- son-Patman Antidiscrimination Act, shall apply to purchases of their supplies for their own use by schools, colleges, universi- ties, public libraries, churches, hospitals, and charitable institutions not operated for profit. (Sec. 2, 38 Stat. 730, as amended, secs. 2, 3, 4, 49 Stat. 1527, 1528, ch. 283, 52 Stat. 446; 15 U.S.C. 13, 13a, 13b, 13¢, 21a) § 146.22 Unlawful interference with raw material purchases. It is an unfair trade practice for any member of the industry, by means of any monopolistic practices or through combmation, conspiracy, coercion, boycott, threats, or any other unlaw- ful means, directly or indirectly, to in- terfere with a competitor’s right to purchase his raw materials and sup- plies from whomsoever he chooses, or to sell his product to whomsoever he chooses. $146.23 Aiding or ahetting use of unfair trade practices. It is an unfair trade practice for any person, firm, or corporation to aid, abet, coerce, or induce another, direct- ly or indirectly, to use or promcte the use of any unfair trade practice speci- fied in this part. Grovur II § 146.101 Cost records. It is the judgment of the industry that each member should indepen- dently keep proper and accurate re- cords for determining the costs. § 146.102 Repudiation or cancellation of contracts. Lawful contracts are business obliga- tions which should be performed in letter and in spirit. The repudiation or 452 Chapter Il-—Federal Trade Commission cancellation of contracts by sellers on a rising market or by buyers on a de- clining market is condemned by the in- dustry. COMMITTEE ON TRADE PRACTICES $ 146.201 Industry committee. The provisions of § 16.1! of this sub- 16 CFR 16.1 was deleted at 36 FR 3116, Feb. 18, 1971. § 146.201 chapter shall be applicable to an in- dustry committee established under this part. (21 PR 1174, Feb. 21, 1956] PARTS 147-149 [RESERVED]