Wholesale Confectionery Industry (Philadelphiatrade Area)
16 CFR Part 168 · Trade practice rules · in the Code of Federal Regulations 1970-1970 (1 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 These rules and guides are historical: most were rescinded or replaced, so do not assume any is in force.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, 1970 CFR · Earliest edition: 1970 CFR
Text (1970 edition, OCR)
Title 16—Chapter | chasers or prospective purchasers, dis- tributors of construction machinery 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) Group I Sec. 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- tall transactions. 168.4 Deception as to available supply of advertised merchandise. 168.5 Misuse of word “free,” etc. 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. 168.13 Commercial bribery. 168.14 Defamation of competitors or dis- paragement of their 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. Group II 168.101 Giving samples. 168.102 Unwarranted return of merchandise, 168.108 Arbitration. AvutHoriry: The provisions of this Part 168 issued under secs. 6(g), 5, 38 Stat. 722, 719; 16 US.C. 46(g), 45, unless otherwise noted. Source: The provisions of this Part 168 appear at 11 F.R. 8144, July 30, 1946, unless otherwise noted. 36-035-—70—6 75 § 168.4 Group I § 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 Umitation thereof, 1s “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 business. 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 between 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. § 168.5 § 168.5 Misuse of word “free,” etc. It is an unfair trade practice to use the term “free,” or any other term of similar import or meaning, to de- scribe, designate, or refer to any ‘industry product which is not given to the recipient thereof without cost and unconditionally. § 168.6 Use of lottery schemes. The offering or giving of prizes, pre- miums, or gifts in connection with the sale of industry products, or as an inducement thereto, by any scheme which involves lottery or scheme of chance, is an unfair trade practice. § 168.7 Imitation or simulation of trade- marks, trade names, etc. The imitation or simulation of the trade-marks, trade names, brands, or labeis of competitors, with the capacity and tendency or effect of misleading or deceiving purchasers, prospective pur- chasers, or the consuming public, is an unfair trade practice. § 168.8 False invoicing. It is an unfair trade practice to with- hold from or insert in invoices any statements or information by reason of which omission or insertion a false rec- ord is made, wholly or in part, of the transactions represented on the face of such invoices, with the effect of thereby misleading or deceiving purchasers or prospective purchasers. § 168.9 False and misleading price quo- tations, etc. The publishing or circulating by any member of the industry of false or misleading price quotations, price lists, or terms or conditions of sale, with the capacity and tendency or effect of thereby misleading or deceiving pur- chasers or prospective purchasers, is an unfair trade practice. § 168.10 Use of “loss leaders.” The practice of selling any brand of confectionery, candy bar, chewing gum, or other confectionery product, or allied line, below the seller’s cost as a “loss leader” to induce the purchase of other merchandise, the sale of the latter being used to recoup the loss sustained on the “loss leader” product so sold, with the capacity and tendency or effect of mis- leading or deceiving purchasers, pro- 76 Title 16—Chapter 1 spective purchasers, or the consuming public, in an unfair trade practice. § 168.11 Coercing purchase of one prod- uct as a prerequisite to the purchase of other products. The practice of coercing the purchase of one or more products as a prerequisite to the purchase of one or more other products, where the effect may be to substantially lessen competition or tend to create a monopoly or to unreasonably restrain trade, is an unfair trade practice. § 168.12 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 effect of artificially clogging or closing trade outlets and unduly restricting competi- tors’ use of said trade outlets in getting their products to consumers through regular channels of distribution, thereby injuring, destroying, or preventing com- petition or tending to create a monopoly or to umreasonably restrain trade. Nothing in this section shall be construed as restricting or preventing consign- ment shipping or marketing of industry products in good faith where suppression of competition, restraint of trade, or un- due interference with competitors’ use of the usual channels of distribution, is not effected. § 168.13 Commercial bribery. It is an unfair trade practice for a member of the industry, directly or indi- rectly, to give or offer to give, or permit or cause to be given, money or anything of value to agents, employees, or repre- sentatives of customers or prospective customers, or to agents, employees, or representatives of competitors’ custom- ers or prospective customers, without the knowledge of their employers or principals, as an inducement to in- fluence thelr employers or principals to purchase or contract to purchase prod- ucts manufactured or sold by such in- dustry member or the maker of such gift or offer, or to influence such em- ployers or principals to refrain from dealing in the products of competitors or from dealing or contracting to deal with competitors. Title 16—Chapter | § 168.14 Defamation of competitors or disparagement of their products. 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 the products of competitors in any respect, or of their business meth- ods, selling prices, values, credit terms, policies, or services, is an unfair trade practice. § 168.15 Inducing breach of contract. Inducing or attempting to induce the breach of existing lawful contracts be- tween competitors and their customers or their contracts between competitors and their customers or their suppliers by any false or deceptive 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 prejudicing com- Petitors in their business, is an unfair trade practice. § 168.16 suits. The circulation of threats of sult for infringement of patents or trade-marks among customers or prospective cus- tomers of competitors, not made in good faith but for the purpose or with the effect of thereby harassing or intimi- dating such customers or prospective cus- tomers, or of unduly hampering, in- juring, or prejudicing competitors in their business, is an unfair trade practice. § 168.17 Selling below cost. The practice of selling industry prod- ucts below the seller’s cost with the intent and with the effect of injuring a com- petitor and where the effect may be sub- stantially to lessen competition or tend to create a monopoly or unreasonably re- strain trade is an unfair trade practice. All elements recognized by good account- ing practice as proper elements of such cost shall be included in determining cost under this section. The costs, how- ever, which are 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. Unfair threats of infringement 17 § 168.19 § 168.18 Combination or coercion to fix prices, suppress competition, or re- strain trade. It is an unfair trade practice for a member of the industry, or any other person: (a) To use, directly or indirectly, any form of threat, intimidation, or coercion against any member of the industry 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 mem- bers of the industry, or with one or more other persons, to unlawfully fix, main- tain, or enhance prices, suppress compe- tition, or restrain trade. § 168.19 Discrimination. (a) Prohibited discriminatory prices, or rebates, refunds, discounts, credits, etc., which effect unlawful price discrimi- nation. 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 (whether in the guise of samples or otherwise), where such re- bate, refunds, discount, credit, 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 pur- chases involved therein are in commerce, and where the effect thereof may be sub- stantially to lessen competition or tend to create a monopoly in any line of com- merce, 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, consump- tion, 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 deliy- 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 § 168.20 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 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 imminent deterioration of perishable goods, ob- solescence of seasonal goods, - distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned. (o) Prohibited br okerage and commis- sions. It is an unfair trade practice for any. member of the industry engaged in commerce, in the course of such com- merce, to pay or grant, or to receive or accept, anything of value as a commis- sion, .brokerage, or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of goods, wares, or mercnandise, either to the other party.to such transaction or to an agent, representative, or other in- termediary therein where such inter- mediary-is acting in fact for or in behalf, or is subject to the direct or indirect control, of any party to such transac- tion 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 advertising 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 facili- ties furnished by or through such cus- tomer 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 proportionaliy equal terms to all other customers competing in the distribution of such products or com- modities. (ad) Prohibited discriminatory services or facilities. It is an unfair trade prac- tice for any member of the industry to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale, with or without processing, by contracting to 78 Title 16——Chapter | furnish or. furnishing, or by contributing to the furnishing of, any services or facil- ities connected with the processing, han- dling, sale, or offering for sale of such commodity so purchased upon terms not accorded to ali purchasers on propor- tionally 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 foregoing provisions of this section. (f) Purchases by schools, colleges, uni- versities, public libraries, churches, hos- pitals, and charitable institutions not operated for profit. The foregoing pro- visions of this section relate to practices within the purview of the 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 amendment 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 nothing in the Act approved June 19, 1936 (Public, Numbered 692, Seventy-fourth Congress, sec- ond session), known as the Robinson-Patman Antidiscrimination Act, shall apply to pur- chases of their supplies for their own use by schools, colleges, universities, public libraries, churches, hospitals, and charitabie institu- tions not operated for profit. (Sec. 2, 38 Stat. 730, as amended, secs. 2, 3, 4, 49 Stat. 1527, 1528, ch. 288, 52 Stat. 446; 15 U. S. C. 18, 18a, 18b, 18c, 21a) § 168.20 Discriminatory returns. It is an unfair trade practice for any member of the industry engaged In com- merce to discriminate in favor of one customer-purchaser against another customer-purchaser of industry products, bought from such member of the in- dustry for resale, by contracting to fur- nish or furnishing in connection therewith, upon terms not accorded to all customer-purchasers on proportionally equal terms, the service or facility whereby such favored purchaser is ac- corded the privilege of returning prod- ucts to purchased and receiving therefor credit or refund of purchase price: Pro- vided, however, Nothing in any of the sections in this part shall prohiblt or be used to prevent the return of merchan- dise by purchaser, for credit or refund of Title 16—Chapter | purchase price when and because such merchandise has been falsely or im- properly labeled, branded, or represented, or when and because such merchandise is defective contrary to warranty or purchase contract. Group II § 168.101 Giving samples. The industry disapproves the giving of samples without charge except when given to acquaint purchasers, prospective purchasers, or the consuming public, with the product offered for sale and where the giving of such samples is not practiced or accomplished in such way or to such extent as to effectuate an illegal discrimination contrary to the provisions of Rule 19 (§ 168.19), or to accomplish any other illegal result contrary to these rules. § 168.102 Unwarranted return of mer- chandise. The practice, by members of the in- dustry, of selling merchandise and later permitting the purchaser to return it for credit or refund of purchase price, with- out 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 requirements and limitations set forth in the provisions of § 168.20 of Group I, herein. § 168.103 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 compose their differences. If unable to do so they should, if possible, submit these disputes .to impartial arbitration. PART 169—-MASONRY WATER- PROOFING INDUSTRY Group I Sec, 169.0 Definitions, 169.1 Deception (general). 169.2 Deceptive use of representations “waterproof,” “waterproofing,” etc. 169.3 Misuse of the words “dampproof” and ‘“dampproofing.” 169.4 Misuse of the words “water-resistant” and “damp-resistant.” 169.5 Misuse of the words “weatherproof,” “weatherproofing,” etc. § 169.0 Sec. 169.6 Misuse of terms importing per- petuity. 169.7 Essential disclosures to prevent de- ception as to the use and applica- tion of industry products. 169.8 Misrepresentation as to character of business, 169.9 Deceptive use of trade or corporate names, or trade-marks, etc. 169.10 Misrepresenting products as con- forming to standard. 169.11 Imitation of trade-marks, trade names, etc. 169.12 Guarantees, warranties, etc. 169.18 Procurement of competitors’ con- fidential information by unfair means and wrongful use thereof. 169.14 Unfair threats of infringement sults, 169.15 Defamation of competitors or dis- paragement of their products. 169.16 Substitution of products. 169.17 Inducing breach of contract. 169.18 Commercial bribery. 169.19 Discrimination. 169.20 Aiding or abetting use of unfair trade practices. AvutrHorRITy: The provisions of this Part 169 issued under secs. 6(g), 5, 33 Stat. 722, 719; 15 U.S.C. 46(g), 45, unless otherwise noted. Source: The provisions of this Part 169 appear at 11 FR. 9613, Aug. 31, 1946, unless otherwise noted. § 169.0 Definitions. As used in this part, the terms “indus- try products,” “masonry unit,’’ and “ma- sonry structures” have the following meanings, respectively: (a) Industry products. Admixtures and coatings which render, purport to render, or are represented as rendering, concrete, brick, stone, stucco, concrete blocks, cinder blocks, mortar, or other masonry, or structures or parts of struc- tures made thereof, impermeable or more resistant to water and moisture or the effects thereof. (b) Masonry unit. A concrete block, cinder block, brick, stone, or other similar structural unit. (c) Masonry structure. Any structure or part of structure which is made of concrete, stucco, or other masonry, or of concrete blocks, cinder blocks, brick, stone, or similar units, bonded by mortar or other material. The term includes building walls, retaining walls, roofs, basements, foundations, floors, dams, res- ervoirs, tanks, swimming pools, piers, silos, and parts thereof, as well as other structures and parts of structures, which are of any such composition and con- struction.