Consumer Law Library

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 These rules and guides are historical: most were rescinded or replaced, so do not assume any is in force.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.