Construction Equipment Distributing Industry
16 CFR Part 167 · Trade practice rules · in the Code of Federal Regulations 1946-1976 (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 These rules and guides are historical: most were rescinded or replaced, so do not assume any is in force.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: 1946 CFR
Text (1976 edition, OCR)
Chapter l—Federal have not been previously contracted for, requested or ordered, is condemned by the industry. § 166.104 Unwarranted return of mer chandise. The practice by members of the indus- try of permitting customers to return purchased or consigned piston rings without just cause for refund or credit, without the payment of a reasonable charge to cover actual expenses of neces- _ sary reinspection and repacking, creates waste and loss and increases the cost of doing business, to the detriment of both the industry and the public, and is condemned by the industry: Provided, however, That the above shall not apply to the return of piston rings at the re- quest of the seller or consignor, and sub- ject to the general limitation that mem- bers of the industry shall not engage in any combination or consplracy to fix prices or charges or otherwise to restrain trade or use any other illegal methods in the regulation, control, or prevention of the return of piston rings. $8 166.105 Arbitration. The industry approves the practice of handling business disputes between members of the industry and their cus- tomers in a fair and reasonable manner, coupled with a spirit of moderation and good will, and every effort should be made by the disputants themselves to eompose their differences, If unable to do so they should, if possible, submit these disputes to arbitration. PART 167—-CONSTRUCTION EQUIP- MENT DISTRIBUTING INDUSTRY Group I Bec. 167.0 Definitions. 167.1 Combination or coercion to fix prices, suppress competition, or restrain trade. 1672 Misrepresentation of construction machinery or equipment. 1673 False invotcing, 1674 Misrepresentation as to character of business. 167.5 Deception as to rebuilt or second- hand construction machinery, 167.6 Inducing breach of contract. 167.7 Defamation of competitors or dis- paragement of their construction machinery. 167.8 Commercial bribery. Trade Commission § 167.0 Bec. 167.9 Enticing away employees of competi. tors, 167.10 Prohtbited discriminations, 167.11 Selling below cost. 167.12 Persuading distributors to refrain from submitting independent bids and price quotations to buyers. 167.18 Coerctng adherence to published rental rates or trade-in values. Group II 167.101 Standardization of basis for capac. ity rating. AvrHorirr: The provisions of this Part 167 issued under secs. 6(g), 6, 38 Stat. 722, 719; 15 U.S.C. 46(g), 45, unless otherwise noted. Source: The provisions of this Part 167 appear at 11 FR. 7889, July 20, 1946, unless otherwise noted. Group I § 167.0 Definitions. (a) The term “distributor” as used in this part includes any firm, cor- poration, partnership, or individual engaged in: . (1) Selling, distributing, or renting construction machinery to the ultimate user, or (2) Operating as a commission broker, manufacturer’s representative or selling agent in connection with the sale, dis~ tribution, or rental of construction ma- chinery to the ultimate user, or (3) Servicing, repairing or recondi-~ tioning construction machinery in con- nection with the sale, distribution, or rental thereof to the ultimate user, (b) The term “construction machin- ery” as used in this part includes any and all new or used machinery, equip- ment, and parts or accessories therefor, which are designed for use in connection with “construction work” as defined be~ low, or which are designed for use both in connection with “construction work” and other work, such as logging and mining. (c) The term “construction work” as used in this part shall comprehend any and all types of construction, including, by way of example, but not limited to, the building, maintenance, repair, or demo- lition of structures, buildings, industrial works, pipe-lines, transmission lines, res- ervoirs, dams, harbor installations, roads, streets, sewers, airfields, canals, grades, and excavations. 73 58-064—-76——-6 $ 167.1 § 167.1 Combination or coercion to fix prices, suppress competition, or re- strain trade. It is an unfair trade practice for a distributor or any other person: (a) To use, directly or indirectly, any form of threat, intimidation, or coercion against any distributor or other person 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 concerted action with one or more dis- tributors, or with one or more other enhance prices, suppress competition, or persons, to unlawfully fix, maintain, or restrain trade. § 167.2 Misrepresentation of construc- tion machinery or equipment. It is an unfair trade practice for any distributor to make or publish, or cause to be made or published, directly or ind!- rectly, any faise, misleading, or decep- tive statement or representation con- cerning the size, style, strength, capacity, performance, character, durability, ma- terial, origin, construction, manufacture, or distribution of any construction ma- chinery, or any other statement or rep- resentation concerning construction ma- chinery which is false, misleading, or deceptive in any material respect. 8167.3 False invoicing. It is an unfair trade practice for any distributor to withhold from or insert in an invoice any statements or informa- tion by reason of which omission or in- sertion a false record is made, wholly or in. part, of the transaction represented on the face of such invoice, with the effect of thereby misleading or deceiving purchasers or prospective purchasers. §167.4 Misrepresentation as to charac- ter of business. It is an unfair trade practice for any distributor to misrepresent the char- acter, extent, or type of his or its busi- ness, or the extent or character of his or its facilities, equipment, or credit rating. . § 167.5 Deception as to rebuilt or sec- ond-band construction machinery. - In the marketing of rebuilt or second- hand construction machinery, it is an unfair trade practice for any distributor Title 16—Commerclal Practices to fail or refuse to make full and non- deceptive disclosure of the fact that such machinery is not new but is used, rebuilt, or second-hand, as the case may be, such failure or refusal to dis- close having the capacity and tendency or effect of misleading or deceiving Purchasers or prospective purchasers, § 167.6 Inducing breach of contract. It is an unfair trade practice for any distributor to induce or attempt to in- ‘duce the breach of existing lawful con- 74, tracts between competitors and their customers, or their suppliers, by any false or deceptive means whatsoever, or to in- terfere with or obstruct the perform. ance of any such contractual duties or Services by any such means, with the purpose and effect of unduly hampering, injuring, or prejudicing competitors in their business. § 167.7 Defamation of competitors or disparagemeut of their construction machinery. The defamation of competitors by falsely imputing to them dishonorable conduct, inability to perform contracts, questionable credit standing, or by other false representations, or the false dispar- agement of competitors’ construction machinery in any respect, or of their business methods, selling prices, values, credit terms, policies, or services, is an unfair trade practice. § 167.8 Commercial bribery. It is an unfair trade practice for any distributor, directly or indirectly, to give, or offer to give, or permit or cause to be given, money or any- thing of value to agents, employees, or representatives of customers or prospective customers, or to agents, employees, or representatives of compet- itors’ customers, or prospective custom- ers, without the knowledge of their em- ployers or principals, as an inducement to influence their employers or principals to purchase or contract to purchase con- struction machinery sold by such dis- tributor or the maker of such gift or offer, or to influence such employers or prin- cipals to refrain from dealing or con- tracting to deal with competitors. § 167.9 Enticing away employees of competitors. It is an unfair trade practice for any distributor to willfully entice away Chapter I—Federal the employees of competitors with the intent and effect of unduly hamper- ing, injuring, or prejudicing competitors in their business: Provided, That nothing in this section shall be construed as pro- hibiting employees from seeking more favorable employment. § 167.10 Prohibited discriminations. (a) It is an unfair trade practice for any distributor engaged in interstate commerce, in the course of such com- merce, to grant or allow, seoretly or openly, directly or indirectly, any rebate, refund, discount, credit, rental allowance, or other form of price differential, where such rebate, refund, discount, credit, rental allowance or other form of price differential, effects a discrimination in price between different purchasers of goods of like grade and quality, where either or any of the purchases involved therein are in interstate commerce, and where the effect thereof may be substan- tially to lessen competition or tend to create a monopoly in any line of inter- state 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, That nothing contained in this section shall be construed to prohibit any action which is permitted by the Robinson- Patman Antidiscrimination Act,’ as amended, and not otherwise unlawful. (b) It is an unfair trade practice for any distributor engaged in interstate commerce, in the course of such com- merce, knowingly to induce or receive a discrimination in price which is prohib- tted by the provisions of this section.’ (Sec. 2, 38 Stat. 730, as amended, secs. 2, 8, 4, 49 Stat. 1527, 1528, ch. 283, 52 Stat. 446; 15 U.8.0, 18, 18a, 18b, 18c, 21a). § 167.11 Selling below cost. The practice of selling construction machinery below the seller’s cost, when pursued 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 1It ts also an unfair trade practice for a distributor to engage In any other discrimt- natory act or practice prohibited by the Robinson-Patman Antidiscrimination Act to the extent that the act may be applicable to such distributor. =T Trade Commission $ 167.101 such selling below the seller’s cost as is resorted to and pursued as a monopolistic practice with the wrongful intent re- ferred to and coupled with the effect of unreasonabiy restraining trade, tending to create a monopoly, or substantially lessening competition. § 167.12 Persuading distributors to re- frain from submitting independent bids and price quotations to buyers. It is an unfair trade practice for any distributor to establish or maintain any policy or practice or commit any act for the purpose or with the effect of restrain- ing, persuading, or otherwise causing any other distributor to refrain from submit- ting to any buyer, price quotations, terms, and conditions of sale, independently ar- rived at or determined: Provided, how- ever, That nothing contained in this sec- tion shall be construed as prohibiting any manufacturer of construction ma- chinery from including in any of its or his sales contracts with any distributor of such machinery a provision for the mar- keting of the machinery of such manu- facturer exclusively through such dis- tributor within any particular territory specified in such sales contracts, insofar as such sales contracts are not in re- straint of trade or otherwise in violation of law. Nore: In substance this section and pro- viso have been taken from a portion of ‘the Federal Trade Commission’s modified cease and desist order in Docket No. 5026 against Associated Equipment Distributors and cer- tain of ita members. § 167.13 Coercing adherence to pub- lished rental rates or trade-in values. It is an unfair trade practice for any distributor to persuade, influence, or oth- erwise cause distributors to adhere to such rental rates or trade-in values as are compiled, collated, and published, from time to time, by the industry, irre- spective of whether such rates or values are based on past transactions in the in- dustry or other data or information. Such rental rates and trade-in values may only be used for informational pur- poses, subject to the prohibitions con- tained in this part. Group II § 167.101 Standardization of basis for capaeity rating. In order to assist in preventing mis- understanding and deception of pur- chasers or prospective purchasers, dis- tributors of construction machinery 5 § 168.1 approve of the practice of encouraging manufacturers to standardize the factors upon which the rating of capacity of their construction machinery is based. Nore: This rule does not authorize the standardization of capacity or size, but is directed toward encouraging the use of a standard basis on which to compute rating of capacity solely for the purpose and effect of preventing misrepresentation and decep- tion, and of fully informing the purchaser as to capacity of construction machinery. PART 168—WHOLESALE CONFEC- TIONERY INDUSTRY (PHILADEL- PHIA TRADE AREA) Grour I Bec. 168.1 Misrepresentation in general, 168.2 Misrepresentation as to character of business. 168.3 Deception through failure to differ= entiate between wholesale and re- tail transactions. . 188.4 Deception as to available supply of advertised merchandise. 168.5 Misuse of word “free,” ete. 168.6 Use of lottery schemes. 168.7 Imitation: or simulation of trade- marks, trade names, etc. 168.8 False invoicing. 168.9 False and misleading price quota- tions, etc. 168.10 Use of “loss leaders.” . 168.11 Coercing purchase of one product as a prerequisite to the purchase of other products. 168.12 Consignment distribution. 168.18 Commercial bribery. 168.14 Defamation of competitors or dis- paragement of thelr products, 168.15 Inducing breach of contract. 168.16 Unfair threats of infringement suits. 168.17 Selling below cost. 168.18 Combination or coercion to fix prices, suppress competition, or restrain trade. 168.19 Discrimination. 168.20 Discriminatory returns. Grovur IT 168.101 Giving samples. 168.102 Unwarranted return of merchandise. 168.103 Arbitration. Aurnonry: The provisions of this Part 168 issued under secs. 6(g), 5, 38 Stat. 722, 719; 15 U.S.C. 46(g), 45, unless otherwise ooted. Source: The provisions of this Part 168 appear at 11 F.R. 8144, July 30, 1946, unless otherwise noted. 76 Title 16—Commercial Practices Group If § 168.1 Misrepresentation in general. It is an unfair trade practice to use, or cause or promote the use of, any trade promotional literature, advertising mat- ter, mark, brand, label, designation, or representation, however disseminated or published, which has the capacity and tendency or effect of misleading or de- ceiving purchasers or prospective pur- chasers with respect to the grade, quality, quantity, price, value, composition, in- gredients, nutritional value, character, nature, size, use, preparation, manufac- ture, or distribution of any product of the industry, or in any other material respect. Nore: Among the inhibitions of this sec- tion, but not in limitation thereof, ts “false advertisement,” as defined in section 15 of the Federal Trade Commission Act, of any “food” or other product within the scope of such section. § 168.2 Misrepresentation as to charac- ter of husiness. It is an unfair trade practice for any member of the industry, in the course of or in connection with the distribution or sale of industry products, to represent, directly or indirectly, that. it is a wholesaler of industry products when such is not the fact, or in any other manner to misrepresent the character, extent, or type of its business, § 168.3. Deception through failure to. differentiate hetween wholesale and retail transactions. Where industry products are sold at wholesale and at retail in the same establishment of a member of the industry, the commingling of the two types of business in such manner as. to have the capacity and tendency or effect of misleading or deceiving pur- chasers or prospective purchasers is an unfair trade practice. § 168.4 Deception as to available sup- ply of advertised merchandise. The advertising or offering for sale of small or inadequate supplies of well- known brands or products at greatly reduced or bargain prices, without dis- closure of the inadequacy of the supply available at such prices and with the capacity and tendency or effect of mis- leading or deceiving purchasers or prospective purchasers, is an unfair trade practice.