Consumer Law Library

Grocery Industry

16 CFR Part 73 / 209 · Trade practice rules · in the Code of Federal Regulations 1938-1978 (17 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 These rules and guides are historical: most were rescinded or replaced, so do not assume any is in force.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: 1938 CFR

Text (1978 edition, OCR)

§ 205.103

agree upon or to fix, specify, or deter-
mine the prices, discounts, terms, or
conditions of sale to be covered in any
sales contract or transaction, but these
shall be open to individual negotiation
between the seller and buyer, subject
to the requirements of §8§205.1 to
205.16 of this part and applicable pro-
visions of iaw.

§ 205.103 Use of samples.

(a) The industry disapproves the
giving of samples without charge in
greater quantity than is actually nec-
essary to acquaint purchasers or pro-
spective purchasers with the grade or
quality of the product offered for sale.
However, the furnishing of any sam-
ples shall not be carried out in a
manner involving discrimination pro-
hibited by the provisions of § 205.15 of
this part.

(b) The industry interpretation of
“actually necessary” quantities as
above is: “A reference sample of each
item not exceeding one 27” x 27”
square or one full repeat of pattern,
with one color line not to exceed 6” x
9”.”"

§ 205.104 Arbitration of disputes.

The industry approves and recom-
mends the use of commercial arbitra-
tion for the speedy and efficient dispo-
sition of disputes arising out of the
sale, processing, and distribution of
the industry’s fabrics.

PART 209—GROCERY INDUSTRY

Sec.
209.0 Definitions.
Grovpr I

SUBGROUP A

Statutory basis of §§ 209.3 to 209.8.

Definition of ‘““cemmerce.”

209.3 Prohibited discrimination in price.

209.4 Prohibited brokerage and commis-
sions, etc.

209.5 Prohibited discrimination in advertis-
ing or promotional allowances.

209.6 Prohibited discrimination in services
or facilities.

209.7 Prohibited inducing or receiving dis-
crimination in price.

209.8 Exemptions from §§ 209.3 to 209.7.

SUBGROUP R

209.9 Statutory basis of §§ 209.11 to 209.25.
209.10 Definition of “purchasing public.”

209.1
209.2

Title 16—Commercial Practices

Sec.
209.11 Prohibited wrongful selling below
cost.

209.12 False use of the term “bargain” pro-
hibited.

209.13 Prohibited use of fictitious price.

209.14 Prohibited use of any false or mis-
ieading term of sale.

209.15 Prohibited use of any false or mis-
leading invoice, etc.

209.16 Prohibited misrepresentation of
available product supply.

209.17 Prohibited use of any misleading or
deceptive selling method.

209.18 Prohibited misrepresentation in
general.

209.19 Prohibited defamation of competi-
to:

r.

209.20 Prohibited enticing of competitor's
employee.

209.21 Prohibited substitution of competi-
tor’s product.

209.22 Prohibited interference with com-
petitor’s contract.

209.23 Prohibited coercion of purchase.

209.24 Prohibited use of lottery scheme.

209.25 Prohibited forms of trade restraints
(unlawful price fixing, etc.)

SUBGROUP C

209.26 Prohibited use of unfair exclusive
deals.

SUBGROUP D

209.27 Prohibited aiding or abetting use of
unfair trade practices.

COMMITTEE ON TRADE PRACTICES
209.201 Industry committee.

Avrnorrry: Secs. 6, 5, 38 Stat. 721, 719; 15
U.S.C. 46, 45, unless otherwise noted.

Source: 17 FR 2357, Mar. 19, 1952, unless
otherwise noted.

Note: FTC Order, File No. 21-452, 21 FR
265, Jan. 13, 1956, provides in part that Part
22, Frozen Food Industry, of this sub-
chapter, supersedes Part 209 with respect to
persons, firms, corporations, and organiza-
tions engaged in the production and/or
marketing of vegetables, fruits, julces, fish
and shellfish, baked goods, and other mis-
cellaneous prepared foods, which are
packed, marketed, and delivered to the ulti-
mate consumer in a frozen state. (Not in-
cluded as products of the frozen food indus-
try are meats and poultry, and frozen dairy
products including ice cream and sherbets.)

$209.0 Definitions.

The term “member of the industry,”
as used in this part, means any person
engaged in the business of marketing
one or more products to or in the gro-

86


Chopter I—Federal Trade Commission

cery trade. The term “person,” as thus
used, means any individual, partner-
ship, corporation, association, or other
organization.

Grovr I
SUBGROUP A

§ 209.1 Statutory basis of §§ 209.3 to 209.8.

Sections 209.3 to 209.8 of this part
contain rules which repeat the statu-
tory language in section 2 (a) and (c)
to (f) of the Clayton Act, as amended
by the Robinson-Patman Act and oth-
erwise. This law is qualified by the fol-
lowing mect-competion provisions in
section 2(b) of the Clayton Act:

Upon proof being made, at any hearing on
a complaint under this section, that there
has been discrimination in price or services
or facilities furnished, the burden of rebut-
ting the prima-facie case thus made by
showing justification shall be upon the
person charged with a violation of this sec-
tion, and unless justification shall be affir-
matively shown, the Commission is autho-
rized to issue an order terminating the dis-
crimination: Provided, however, That noth-
ing herein centained shall prevent a seller
rebutting the prima-facie case thus made by
showing that his lower price or the furnish-
ing 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.

§ 209.2 Definition cf “commerce.”

The term “commerce,” as used in
8§ 209.3 to 209.8 of this part, is te be
construed as it is defined in section 1
of the Clayton Act. This definition is
as follows:

“Commerce” * * * means trade or com-
merce among the several States and with
foreign nations, or between the District of
Columbla or any Territory of the United
States and any State, Territory, or foreign
nation, or between any insular possessions
or other places under the jurisdiction of the
United States, or between any such posses-
sion or place and any State or Territery of
the United States or the District of Colum-
bia or any foreign nation, or within the Dis-
trict of Columbla or any Territory or any in-
sular possession or other place under the ju-
risdiction of the United States: Provided,
That nothing in this Act contained shall
apply to the Phillippine Islands.

87

30-035 O- 78-7

§ 209.3

§ 209.3 Prohihited discrimination in price.

It is an unfair trade practice for any
member of the industry engaged in
commerce, in the course of such com-
merce, either directly or indirectly, to
discriminate in price betwcen different
purchasers of commodities of like
grade and quality, whether either or
any of the purchases involved in such
discrimination are in commerce, where
such commodities are sold for use, con-
sumption, or resale within the United
States or any Territory thereof or the
District of Columbia or any insular
possession or other place under the ju-
risdiction of the United States, and
where the effect of such discrimina-
tion may be substantially to lessen
competition or tend to create a mo-
nopoly 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, That noth-
ing contained in this section shall pre-
vent:

(a) Differentials which make oniy
due aliowance for differences in the
cost of manufacture, sale, or delivery
resulting from the differing methods
or quantities‘ in which such commod-
ities are to such purchasers soid or de-
livered; or

(b) Price changes from time to time
where in response to changing condi-
tions affecting the market for or the
marketability of the goods concerned,
such as but not limited to actual or im-
minent deterioration of perishable
goods, obsolescence of seasonal goods,
distress sales under court process, or

‘This exemption of quantity price differ-
entials is further qualifled by the following
additional provisions in amended section 2
(a) of the Clayton Act:

«“e ¢ © the Federal Trade Commission may,
after due investigation and hearing to all in-
terested partles, fix and establish quantity
limits, and revise the same as it finds neces-
sary, as to particular commoditles or classes
of commodities, where It finds that avail-
able purchasers in greater quantities are so
few as to render differentials on account
thereof unjustly discriminatory or promo-
tive of monopoly in any line of commerce;
and the foregoing shall then not be con-
strued to permit differentials based on dif-
ferences in quantities greater than those so
fixed and established * * *”’.


§ 209.4

sales in good faith in discontinuance
of business in the goods concerned; or

(c) Persons engaged in selling goods,
wares, or merchandise in commerce
from seiecting their own customers in
bona fide transactions and not in re-
straint of trade.

§ 209.4 Prohibited brokerage and commis-
sions, etc.

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 compensa- .

tion, or any allowance or discount in
lieu thereof, except for services ren-
dered in connection with the sale or
purchase of goods, wares, or merchan-
dise, either to the other party to such
transaction or to an agent, representa-
tive, or other intermediary therein
where such intermediary is acting in
fact for or in behalf, or is subject to
the direct or indirect control, of any
party to such transaction other than
the person by whom such compensa-
tion is so granted or paid.

§ 209.5 Prohibited discrimination in ad-
vertising or promotional allowances.

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 contract for the pay-
ment of anything of value to or for
the benefit of & customer of -such
person as compensation or in consider-
ation for any services or facilities fur-
nished by or through such customer in
connection with the processing, han-
dling, sale, or offering for sale of any
products or commodities manufac-
tured, sold, or offered for sale by such
person, uniess such payment or consid-
eration is avallable on proportionally
equai terms to all other customers
competing in the distribution of such
products or commodities.

§ 209.6 Prohibited discrimination in ser-
vices or facilities.

It is an unfair trade practice for any
member of the industry engaged in
commerce, in the course of such com-
merce, to discriminate in favor of one
purchaser against another purchaser
or purchasers of a commodity bought

Titie 16—Commerciai Practices

for resale, with or without processing,
by contracting to furnish or furnish-
ing, or by contributing to the furnish-
ing 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
accorded to all competing purchasers
on proportionally equai terms.

§ 209.7 Prohibited inducing or receiving
discrimination in price.

It is an unfair trade practice for any
member of the industry engaged in
commerce, in the course of such com-
merce, knowingly to induce or receive
a discrimination in price which is pro-
hibited by §§ 209.3 to 209.8 of this part.

§ 209.8 Exemptions from §§ 209.3 to 209.7.

Nothing in §§ 209.3 to 209.7 of this
part:

(a) Shall prevent a cooperative asso-
ciation from returning to its members,
producers, or consumers the whole, or
any part of, the net earnings or sur-
plus resulting from its trading oper-
ations, in proportion to their pur-
chases or sales from, to, or through
the association, ? or

(b) Shall apply to purchases of their
supplies for their own use by schoois,
colieges, universities, public libraries,
churches, hospitals, and charitable in-
stitutions not operated for profit.*

SUBGROUP B

§ 209.9 Statutory basis of §§ 209.11 to
209.25.

Sections 209.11 to 209.25 of this part
contain rules based on sections 5 and
12 of the Federal Trade Commission
Act. Said section 5 prohibits the use of
all unfair methods of competition and
of all unfair or deceptive acts or prac-
tices in commerce, and sald section 12-
a (1) prohibits the dissemination of
“any false advertisement by United
States mails, or in commerce by any
means, for the purpose of inducing, or
which is likely to induce, directly or
indirectly the purchase of food, drugs,

*Paragraph (a) repeats the statutory lan-
guage in section 4 of the Robinson-Patman

ct.

*Paragraph (b) repeats the statutory lan-
guage in an amendment to the Robinson-
Patman Act. '

88


Chapter I—Federal Trade Commission

devices, or cosmetics.” As used in said
sections 5 and 12, the term “com-
merce” is to be construed as it is de-
fined in section 4 of the Federal Trade
Commission Act. This definition reads
as follows:

“Commerce” means commerce among the
several States or with foreign nations, or in
any Territory of the United States or in the
District of Coiumbia, or between any such
Territory and another, or between any such
Territory and any State or foreign nation,
or between the District of Columbia and
any State or Territory or foreign nation.

§ 209.10 Definition of “purchasing public.”

The term “purchasing public,” as
used in 8§ 209.11 to 209.25 of this part,
means actual and prospective trade or
consumer purchasers, as the case may
be.

§ 209.11 Prohihited wrongful selling below
cost.

(a) It is an unfair trade practice for
any member of the industry to adver-
tise, offer, or sell a product at a price
less than the cost thereof to the seller,
with the purpose or intent, and where
the effect may be, to injure, suppress,
or stifle competition or tend to create
a monopoly in the production or sale
of such products. As used in this sec-
tion, the term “cost’’ means the total
cost to the seller, including the costs
of acquisition, processing, preparation
for marketing, sale, and delivery.

(b) This section is not to be con-
strued as prohibiting all sales below
cost, but only such selling below the
selier’s cost as is resorted to and pur-
sued as a monopolistic practice with
the wrongful intent referred to and
where the effect may be unreasonably
to restrain trade, tend to create a mo-
nopoly, or substantially lessen compe-
tition.

§ 209.12 False use of the term “bargain”
prohihited.

It is an unfair trade practice for any
member of the industry to falsely rep-
resent in the advertisement, offer, or
saie of a product, either expressly or
impliedly, that the price at which such
product is sold is a bargain price or an
otherwise reduced price.

89

§ 209.18

§ 209.13 Prohihited use of fietitious price.

It is an unfair trade practice for any
member of the industry to advertise,
offer, or sell a product (a) at a price
purported to be reduced from what is
in fact a fictitious price, or (b) at a
purported reduction in price which is
in fact a fictitious one.

§ 209.14 Prohibited use of any false or
misieading term of sale.

It is an unfair trade practice for any
member of the industry to quote or
disseminate any price or any other
term (including condition) of sale
which is false, or which otherwise has
the capacity and tendency or effect of
misleading or deceiving the purchas-
ing public.

§ 209.15 Prohibited use of any false or
misleading invoice, ete.

It is an unfair trade practice for any
member of the industry, in connection
with the sale or purchase of a product,
(a) to make an invoice a false record of
a sale by adding or omitting any state-
ment with respect to it, or (b) to falsi-
fy a purchase record by any manipula-
tion of it, or (c) to use an invoice or
purchase record which otherwise has
the capacity and tendency or effect of
misleading or decciving the purchas-
ing public.

§ 209.16 Prohibited misrepresentation of
available product supply.

In connection with the advertise-
ment, sale, offering for sale, or distri-
bution of products, it is an unfair
trade practice for any member of the
industry, either expressiy or implledly,
to misrepresent the available supply of
a product.

§ 209.17 Prohibited use of any misleading
or deceptive selling method.

It is an unfair trade practice for any
member of the industry to use any
method of selling a product which has
the capacity and tendency or effect of
misleading or deceiving the purchas-
ing public in any material respect.

§ 209.18 Prohibited misrepresentation in
general.

It is an unfair trade practice for any
member of the industry, either direct-


§ 209.19

ly or indirectiy, to make any misrepre-

sentation in the advertisement, offer,

or sale of a product (a) about its pro-
duction or distribution, or (b) about its
identity, nature, character, composi-
tion, grade, quality, quantity, size, use,
or value, or (c) in any other material
respect.

§ 209.19 Prohibited defamation of com-
petitor.

It is an unfair trade practice for any
member of the industry to defame a
competitor, or to disparage his prod-
uct, his business or its conduct, by any
false or otherwise unfair representa-
tion.

§ 209.20 Probibited enticing of competi-
tor’s employee.

It is an unfair trade practice for any
member of the industry to entice away
any employee of a competitor with the
purpose and tendency or effect of un-
fairly injuring him: Provided, That
nothing in this section shall be con-
strued as prohibiting employees or
agents from seeking or obtaining more
favorable employment.

§ 209.21 Prohibited substitution of com-
petitor’s product.

It is an unfair trade practice to ship
or dellver products which do not con-
form to samples submitted, to specifi-
cations upon which the sale is consum-
mated, or to representations made
prior to securing the order, without
advising the purchasers as to such sub-
stitution and obtaining consent there-
to at or before the time of shipment or
dellvery, and with the capacity and
tendency or effect of misleading or de-
celving the purchasing or consuming
public.

§ 209.22 Prohibited interference with com-
petitor’s contract.

(a) It is an unfair trade practice for
any member of the industry (1) to
induce the breach of a competitor's
lawful purchase, sale, or other busi-
ness contract, or (2) to interfere with
or obstruct the performance of such a
contract by a competitor, where either
of such practices has the capacity and
tendency or effect of substantially in-
juring or lessening present or poten-
tial competition.

90

Title 16—Commercial Practices

(b) Nothing in this section is intend-
ed to imply that it is improper for any
member of the industry to solicit the
business of a customer of a competing
member of the industry; nor is the sec-
tion to be construed as in anywise au-
thorizing any agreement, understand-
ing or planned common course of
action by two or more members of the
industry not to solicit business from
the customers of either or any of
them, or from customers of any other
member of the industry.

§ 209.23 Prohibited coercion of purchase.

It is an unfair trade practice for any
member of the industry to require by
coercion, or by any other means, the
purchase of one or more products as a
condition to the purchase of one or
more other products, where the effect
may be substantially to lessen compe-
tition, unreasonably restrain trade, or
tend to create a monopoly.

§ 209.24 Prohibited use of lottery scheme.

It is an unfair trade practice for any
member of the industry to sell or pro-
mote the sale of products by means of
a game of chance, gift enterprise, or
other lottery scheme, or to sell or dis-
tribute any punchboards, push cards,
or other lottery devices which are to
be used, or may be used, in the sale or
distribution of merchandise to the
public by means of a game of chance,
gift enterprise, or other lottery
scheme.

§ 209.25 Prohibited forms of trade_re-
straints (unlawful price fixing, etc.).

It is an unfair trade practice for any
member of the industry, either direct-
ly or indirectly—

(a) To engage in any planned
common course of action, or to enter
into or take part in any understand-
ing, agreement, combination, or con-
spiracy with one or more members of
the industry or with any other person
or persons, unlawfully to fix, main-
tain, or enhance the price of any
goods, or otherwise unlawfully to re-
strain trade; or

(b) To use any form of threat, in-
timidation, or coercion to induce any
member of the industry or other
person or persons to engage in any
such planned common course of


Chapter |—Federal Trade Commissian

action, or to become a party to any
such understanding, agreement, com-
bination, or conspiracy.

SUBGROUP C

§ 209.26 Prohibited use of unfair exclusive
deals. ‘

It is an unfair trade practice for any
member of the industry engaged in
commerce, * in the course of such com-
merce, to make a sale or contract for
sale of goods, for use, consumption or
resale within any place under the ju-
risdiction of the United States, or fix a
price charged therefor, or discount
from, or rebate upon, such price, on
the condition, agreement, or under-
standing that the purchaser thereof
shall not deal in the goods of a com-
petitor or competitors of the seller,
where the effect of such sale or con-
tract for sale, or such condition, agree-
ment or understanding, may be to sub-
stantially lessen competition or tend
to create a monopoly in any line of
commerce.

SUBGROUP D

§ 209.27 Prohibited aiding or abetting use
of unfair trade practices.

It is an unfair trade practice for any
member of the industry, either direct-
ly or indirectly, knowingly to ald, abet,
coerce, or induce another to use or
promote the use of any unfair trade
practice forbidden by the rules in this
part.

COMMITTEE ON TRADE PRACTICES

§ 209.201 Industry committee.

The provisions of §16.1* of this
chapter shall be applicable to an in-
dustry committee established under
this part.

°16 CFR 16.1 was deleted at 36 FR 3116,
Feb. 18, 1971.

(21 FR 1174, Feb. 21, 1956]

‘This section is based on section 3 of the
Clayton Act.

®’The term “commerce,” as used in this
section, is to be construed as it is defined in
section 1 of the Clayton Act. This definition
is quoted in § 209.2.

91

§ 209.201

PART 210—COMMERCIAL AND IN-
DUSTRIAL FLOOR AND VACUUM
MACHINERY INDUSTRY

Sec.

210.0 Definitions.

210.1 Misrepresentation and deception in
general.

210.2 Misrepresentation as to character of
business.

210.3 Deception through failure to differ-
entiate between wholesale and retail
transactions.

210.4 Misrepresentation as to installment
sales contracts, their terms, conditions,
etc.

210.5 Deceptive “Salesmen Wanted” adver-
tisements.

210.6 Misrepresenting products as con-
forming to standard.

210.7 Deception as to rebuilt or second-
hand products.

210.8 Misuse of terms “Close-Outs,” “Dis-
continued Lines,” “Special Bargains,”

etc.

210.9 Substitution of products.

210.10 Deceptive use and imitation of trade
or corporate names, trade-marks, etc.

210.11 False invoicing.

210.12 Deceptive pricing.

210.13 Use of the word “free.”

210.14 Guarantees, warranties, etc.

210.15 Use of lottery schemes, etc.

210.16 Consignment distribution.

210.17 Coercing purchase of one product as
@ prerequisite to the purchase of other
products.

210.18 Prohibited sales below cost.

210.19 Defamation of competitors or false
disparagement of their products.

210.20 Procurement of competitors’ confi-
dential information by unfair methods
and wrongful use thereof.

210.21 Enticing away empioyees of com-
petitors.

210.22 Commercial bribery.

210.23 Inducing breach of contract.

210.24 Unfair threats of infringement
sults.

210.25 Unlawful interference with competi-
tors’ purchases or sales.

210.26 Prohibitcd forms of trade restraints.

210.27 Exclusive deals.

210.28 Prohibited discrimination.

210.29 Aiding or abetting use of unfair
trade practices.

COMMITTEE ON TRADE PRACTICES
210.201 Industry committee.

Auvurxoniry: Secs. 6, 5, 38 Stat. 721, 719; 15
U.S.C. 46, 45, unless otherwise noted.

Source: 23 FR 4512, June 21, 1958, unless
otherwise noted.