Consumer Law Library

Brick And Structural Clay Tile And Allied Products Industry

16 CFR Part 27 · Trade practice rules · in the Code of Federal Regulations 1959-1977 (11 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 These rules and guides are historical: most were rescinded or replaced, so do not assume any is in force.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, 1977 CFR · Earliest edition: 1959 CFR

Text (1977 edition, OCR)

3 26.15

§ 26.15 Prohibited forms of trade re-
straints (unlawful price fixing,
etc.)

It is an unfair trade practice, either
directly or indirectly, to engage in any
planned common course of action, or to
enter into or take part in any under-
standing, agreement combination or con-
spiracy, with one or more industry
members, or with any other person or
persons, to fix or maintain the price of
any goods or otherwise unlawfully to re-
strain trade; or to use any form of threat,
intimidation, or coercion to induce any
member of the industry or other person
or persons to engage in any such planned
common course of action, or te become a
party to any such understanding, agree-
ment, combination, or conspiracy.

PART 27—BRICK AND STRUCTURAL
CLAY TILE AND ALLIED PRODUCTS
INDUSTRY

Sec.
27.0 The industry and its products defined.
Group I

27.1 Prohibited discrimination.

27.2 Misrepresentation and deception
(general).

27.3 Misrepresentation as to character of
business.

27.4 Deceptive representations as to prod-

ucts conforming to a standard or
specification.

The inhibitions of this section are sub-
ject to Public Law 542, approved July 14,
1952, 66 Stat. 632 (the McGuire Act) which
provides that with respect to a commodity
which bears, or the label or container of
which bears, the trade-mark, brand, or name
of the producer or distributor of such com-
modity and which is in free and open com-
petition with commodities of the same
general class produced or distributed by
others, a seller of such a commodity may
enter into a contract or agreement with a
buyer thereof which establishes a minimum
or stipulated price at which such commod-
ity may be resold by such buyer when such
contract or agreement is lawful as applied
to intrastate transactions under the laws of
the State. Territory or territorial jurisdic-
tion in which the resale is to be made or to
which the commodity is to be transported
for such resale, and when such contract or
agreement is not between manufacturers, or
between wholesalers, or between brokers, or
between factors, or between retailers, or be-
tween persons, firms, or corporations in com-
petition with each other.

Title 16—Commercial

Practices

Sec.

27.5 Deception as to composition.

27.6 Guarantees, warranties, etc.

27.7 Substitution of products.

27.8 Deceptive use of trade or corporate
names, trade-marks, etc.

27.9 Imitation or simulation of trade-
marks, trade names, etc.

27.10 False invoicing.

27.11 Defamation of competitors or false
disparagement of their products.

27.12 Inducing breach of contract.

27.13 Enticing away employees of competi-
tors.

27.14 Commercial bribery.

27.15 Procurement of competitors’ confi-
dential information.

27.16 Tie-in sales; coercing purchase of one
product as a prerequisite to the
purchase of other products.

27.17 Arrangements to exclude sales of com-

petitors’ products.

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

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

27.20 Consignment distribution.

AUTHORITY: The provisions of this Part 27
issued under secs. 6, 5, 38 Stat. 721, 719; 15
U.S.C. 46, 45, unless otherwlse noted.

Source: The provisions of this Part 27 ap-
pear at 21 F.R. 3830, June 5, 1956, unless
otherwise noted.

§ 27.0 The industry and its products
defined.

(a) Products of the industry respect-
ing which these rules are promulgated
consist of any kind or type of building
units or materials which are, or are rep-
resented directly or indirectly as being,
brick or structural tile.

(b) Members of the industry are per-
sons, firms, corporations, and organiza-
tions engaged in the manufacture, sale,
offering for sale, or distribution of any
such products.

Group I
§ 27.1 Prohibited discrimination."

(a) Prohibited discriminatory prices,
or rebates, refunds, discounts, credits,

1As here used, the term “structural tile”
does not include the veneer types of tile used
for floor or wall surfacing.

3 As used in this section, the word “com-
merce” means “trade or commerce among
the several States and with foreign nations,
or between the District of Columbia 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 possession or place and any State
or Territory of the United States or the Dis-

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Chapter I—Federal Trade Commission

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 ailow, secretly or
openly, directly or indirectly, any rebate,
refund, discount, credit, or other form of
price differential, where such rebate, re-
fund, discount, credit, or other form of
price differential, effects a discrimina-
tion in price between different purchas-
ers of goods of like grade and quality,
where either or any of the purchases in-
volved therein are in commerce, and
where the effect thereof may be substan-
tially 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, con-
sumption, or resale within any place un-
der the jurisdiction of the United States,
and are not purchased by schools,
coileges, unfversities, public libraries,
churches, hospitals, or charitable insti-
tutions not operated for profit, as sup-
plies for their own use.

(2) That nothing contained in this
paragraph shail prevent differentials
which make only due allowance for dif-
ferences in the cost of manufacture, sale,
or delivery 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 in
selling goods, wares, or merchandise in
commerce from selecting their own cus-
tomers in bona fide transactions and not
in restraint of trade.

(4) That nothing contained in this
paragraph shail prevent price changes
from time to time where made in re-
sponse to changing conditions affecting
the market for or the marketability of
the goods concerned, such as but not
limited to obsolescence of seasonal goods,
distress sales under court process, or
sales in good faith in discontinuance of
business in the goods concerned.

trict of Columbia or any foreign nation, or
within the District of Columbia or any Ter-
ritory or any insular possession or other
place under the jurisdiction of the United
States.”

90-058-—77——21

§ 27.1

(5) That nothing contained in this
section shall prevent the meeting in good
faith of an equally low price of a com-
petitor, or the services or facilities fur-
nished by a competitor. (See paragraphs
(c) and (d) of this section.)

(b) Prohibited brokerage 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 merchandise, either to
the other party to such transaction or to
an agent, representative, or other inter-
mediary therein where such inter-
mediary ts acting in fact for or in behalf,
or ts subject to the direct or indirect con-
trol, of any party to such transaction
other than the person by whom such
counpensation is so granted or paid.

(ce) 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 manufac-
tured, sold, or offered for sale by such
member, unless such payment or con-
sideration is available on proportionally
equal terms to all other customers com-
peting in the distribution of such prod-
ucts or commodities.

(d) Prohibited discriminatory services
or facilities, It is an unfair trade prac-
tice for any member of the industry en-
gaged in commerce to discriminate in
favor of one purchaser against another
purchaser or purchasers of a commodity
bought for resale, with or without proc-
essing, by contracting to furnish or fur-
nishing, or by contributing to the
furnishing of, any services or facilities
connected with the processing, handling,
sale, or offering for sale of such commod-
ity so purchased upon terms not ac-
corded to ail competing purchasers on
proportionally equal terms.

(e) Inducing or receiving an illegal
discrimination in price. It is an unfair

311


$ 27.2

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 U.S. Government;
applicability of Robinson-Patman Anti-
discrimination Act to same. In an opin-
ion submitted to the Secretary of War
under date of December 28, 1936, the
US. Attorney General advised that the
Robinson - Patman Antidiscrimination
Act “is not applicabie to Government
contracts for supplies.” (38 Opinions,
Attorney General 539.)

$27.2 Misrepresentation and deception
(general).

It is an unfair trade practice to make
or publish, or cause to be made or
published, by way of advertising, label-
ing, stamping, or otherwise, any state-
ment or representation which, directly
or indirectly, or by reason of conceal-
ment of material fact, has the capac-
ity and tendency or effect of misleading
or deceiving purchasers or prospective
purchasers concerning the grade, qual-
ity, quantity, use, size, material, finish,
character, nature, strength, thickness,
composition, durability, design, origin,
preparation, manufacture, or distribu-
tion of any industry product, or in any
other material respect.

§ 27.3 Misrepresentation as to character
of business.

It is an unfair trade practice for any
member of the industry to represent, di-
rectly or indirectly, through the use of
any word or term in his corporate or
trade name, in his advertising, or other-
wise, that he is a producer or manufac-
turer of, wholesaler or jobber of,
contractor or dealer in, industry prod-
ucts, or that he owns or controls a
factory making such products, when
such is not the fact, or in any other man-
ner to misrepresent the character, ex-
tent, volume, or type of his business.
(See aiso note to § 27.8.)

§ 27.4 Deceptive representations as to
products conforming to a standard
or specification.

In the sale, offering for sale, or distri-
bution of industry products, it ls an un-
fair trade practice:

(a) To falsely represent or imply that
any of such products conform to the re-
quirements of any standard or specifica-

Title 16—Commercial Practices

tion, whether established or recognized
by a department or unit of a city or State
government, or of the Federal Govern-
ment, by trade practice, or otherwise.

(b) To represent or imply that any of
such products conform to the require-
ments of any standard or specification
without clearly disclosing the identity of
the standard or specification to which
reference is made. Such disclosure shall
be by reference to the standard or speci-
fication on all labels, invoices, sales lit-
erature, and other advertising containing
such representation or implication.

(c) For any member of the industry
to claim or imply that any product con-
forms to any standard or specification
which is inapplicable or which has been
rescinded, revised, superseded, or amend-
ed, and thereby mislead or deceive pur-
chasers or prospectlve purchasers.

§ 27.5 Deception as to composition.

(a) It ls an unfair trade practice to
sell, offer for sale, or distribute any
product of this industry under any desig-
nation or representation which has the
capacity and tendency or effect of deceiv-
ing purchasers or prospective purchasers
as to the composition of said product.

(b) Under this section no products of
the industry shall be designated as
“brick,” “tile,” or “structural tile,”
unless ;

(1) The composition thereof is prt-
marily of clay or shale or mixtures there-
of; and

(2) The ingredients thereof have been
fused together as a result of the appli-
cation of heat:

Provided, however, That such designa-
tions may be used for products not meet-
ing the requirements in this section when
so qualified as to denote the basic com-
position thereof (as, for example, “con-
crete brick,” “coral brick,” “plaster
brick,” “sand-lime brick,” “concrete
structural tile,” etc.), or when, in im-
mediate conjunction with the designa-
tions, disclosure is made of the fact that
the products are not ceramic products.
(See also note to § 27.8.)

§ 27.6 Guarantees, warranties, etc.

(a) It 1s an unfair trade practice to use
any guarantee respecting industry prod-
ucts, whether in respect to quality, con-
struction, serviceability, method of man-
ufacture, or in any other respect, which
does not make reasonable disclosure of
the terms, conditions, and limitations of
such guarantee, or which contains state-

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Chapter I—Federal Trade Commission

ments, representations, or assertions
which have the capacity and tendency or
effect of misleading or deceiving in any
material respect, or which are of such
form, text, or character as to represent
or imply that the guarantee is broader
than is in fact true.

(b) It is an unfair trade practice for
the guarantor to fail to observe scrupu-
lously his obligation under the guarantee
by him used or caused to be used.

(ec) This section shall be applicable
also to warranties or any writing pur-
porting to be a guarantee or warranty.

(d) It is also an unfair trade practice
to represent any industry product as
being “guaranteed” unless the nature
and extent of the undertaking, and the
identity of the guarantor, are conjunc-
tively disclosed.

§ 27.7 Substitution of products.

It is an unfair trade practice for a
member of the industry to make an un-
authorized substitution of products,
where such a substitution has the capac-
ity and tendency or effect of misleading
or deceiving the purchaser, by:

(a) Shipping or delivering industry
products which do not cenform to
samples submitted, to specifications upen
which the sale is consummated, or to
representations made prior to securing
the order, without advising the purchaser
of the substitution and obtaining his
consent thereto prior to making ship-
ment or delivery; or

(b) Falsely representing the reason
for making a substitution.

§ 27.8 Deceptive use of trade or corpo-
rate names, trade-marks, ete.

The use of any trade name, corporate
name, trade-mark, or other trade desig-
nation, which has the capacity and tend-
ency or effect of misleading or deceiving
the purchasing or consuming public as to
the name, nature, or origin of any prod-
uct of the industry, or of any material
used therein, or which is false or mis-
leading in any other material respect, is
an unfair trade practice.

Nors: Nothing in this section is to be con-
strued as prohibiting:

(a) The use of the word “brick” as 6 part
of the name of a corporation or business
concern which manufactures or distributes
brick of any type or composition, or

(b) The use of the word “tile” or the words
“structural title’ as a part of the name
of a corporation or business concern which
manufactures or distributes structural tile
of any type or composition;

§ 97,12

Provided, however, That descriptions or
references to any non-ceramic industry
products contained in advertising, sales pro-
motional Hterature or invoices of said cor-
porations or concerns are in accord with the
requirements of § 27.5.

§ 27.9 Imitation or simulation of trade-
marks, trade names, etc.

The imitation or simulation of the
trade-marks, trade names, brands, or
labels of competitors, or of the exclu-
sively owned designs of competitors
which have not been directly or by op-
eration of law dedicated to the public,
with the capacity and tendency or effect
of misleading or deceiving purchasers or
prospective purchasers, is an unfair
trade practice.

§ 27.10 False invoicing.

Withholding froin or inserting in in-
voices or sales tickets any statements or
information by reason of which omission
or insertion a false record is made, wholly
or in part, of the transactions repre-
sented on the face of such invoices or
sales tickets, with the capacity and tend-
ency or effect of thereby misleading or
deceiving purchases, prospective pur-
chasers, or the purchasing public, is an
unfair trade practice.

§ 27.11 Defamation of competitors or
false disparagement of their prod-
ucts.

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 dis-
paragement of the grade, quality, or
manufacture of the products of competi-
tors, or of their business methods, selling
prices, values, credit terms, policies, or
services, or in any other respect, is an
unfair trade practice.

§ 27.12 Inducing breach of contract.

(a) Knowingly inducing or attempting
to induce the breach of existing lawful
contracts between competitors and their
customers or their suppliers, or inter~
fering with or obstructing the perform-
ance of any such contractual duties or
services, under any circumstances having
the capacity and tendency or effect or
substantially injuring or lessening com-
petition, is an unfair trade practice.

(b) Nothing in this section is intended
to imply that it ls improper for an indus-
try member to solicit the business of a
customer of a competing industry mem-

“818


§ 27.13

ber; nor is the section to be construed as
in anywise authorizing any agreement or
understanding by two or more industry
members not to solicit business from the
customers of either of them, or from cus-
tomers of any other industry member.

§ 27.13 Enticing away employees of
competitors.

Knowingly enticing away employees or
sales representatives of competitors
under any circumstance having the ca-
pacity and tendency or effect of
substantially injuring or iessening com-
petition is an unfair trade practice:
Provided, That nothing in this section
shall be construed as prohibiting em-
ployees from seeking more favorable
employment, or as prohibiting employers
from hiring or offering employment to
employees of competitors in good faith
and not for the purpose of injuring, de-
stroying, or preventing competition.

§ 27.14 Commercial bibery.

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, employees, or repre-
sentatives of customers or prospective
customers, or to agents, employees, or
representatives of competitors’ cus-
tomers or prospective customers, without
the knowledge of their employers or
principals, as an inducement to influence
their employers or principals to purchase
or contract to purchase products manu-
factured or sold by such industry mem-
ber or the maker of such gift or offer, or
to influence such employers or principals
to refrain from dealing in the products
of competitors or from dealing or con-
tracting to deai with competitors.

§ 27.15 Procurement of competitors’
confidential information.

It is an unfair trade practice for any
member of the industry to obtain infor-
mation concerning the business of a com-
petitor by bribery of an employee or
agent of such competitor, by false or mis-
leading statements or representations, by
the impersonation of one in authority, or
by any other unfair means, and to use the
information so obtained so as substan-
tlally to injure competition or unreason-
ably restrain trade.

Title 16—Commercial Practices

§ 27.16 Tie-in sales; coercing purchase
of one product as a prerequisite to
the purchase of other products.

The practice of coercing the purchase
of one or more products of the industry
as a prerequisite to the purchase of one
or more other products, where the effect
may be substantially to lessen competi-
tion or tend to create a monopoly or un-
reasonably to restrain trade, is an unfair
trade practice.

§ 27.17 Arrangements to exclude sales
of cempetiters’ products.

It is an unfair trade practice for any
member of the industry to sell or con-
tract for the sale of any industry prod-
ucts for use or resale, or to fix a price
charged therefor, or discount from, or
rebate upon, such price, on the condition,
agreement, or understanding that the
purchaser thereof shali not use or deal
in new or used products of a competitor
or competitors of such industry member,
where the effect of such sale or contract
for sale, or such condition, agreement, or
understanding, may be to substantiaily
lessen competition or tend to create a
monopoly in any line of commerce.

§ 27.18 Prohibited forms of trade re-
straints (unlawful price fixing,
etc.).*

It is an unfair trade practice for any
member of the industry, either directly or
indirectly, to engage in any planned com-
mon course of action, or to enter into or
take part in any understanding, agree-
ment, combination, or conspiracy, with
one or more members of the industry, or
with any other person or persons, to fix
or maintain the price of any goods or
otherwise unlawfully to restrain trade;
or to use any form of threat, intimida-
tion, or coercion to induce any member
of the industry or other person or per-
sons to engage in any such planned com-
mon course of action, or to become a
party to any such understanding, agree-
ment, combination, or conspiracy.

§ 27.19 Unlawful interference with
competitors’ purchases or sales.

It is an unfair trade practice for any
industry member, by means of any mo-

*The inhibitions of this section are sub-
ject to Public Law 642, approved July 14,
1952, 66 Stat. 632 (the McGuire Act).

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Chapter I—Federal Trade Commission

nopolistic practice or through combina-
tion, conspiracy, coercion, boycott,
threats, or any other unlawful means,
directly or indirectly, to interfere with a
competitor’s right to purchase his raw
materials and suppHes from whomsoever
he chooses, or to sell his product to
whomsoever he chooses.

§ 27.20 Consignment distribution.

(a) It is an unfair trade practice for
any member of the industry to employ
the practice of shipping industry prod-
ucts on consignment without the express
request or prior consent of the pur-
chasers.

(b) It is an unfair trade practice for
any member of the industry to employ
the practice of shipping industry prod-
ucts on consignment or pretended con-
signinent for the purpose and with the
effect of artificially clogging or closing
trade outlets and unduly restricting
competitors’ use of said trade outlets in
geting their products to purchasers
through regular channels of distribution,
thereby injuring, destroying, or prevent-
ing competition or tending to create @
monopoly or unreasonably to restrain
trade.

(c) Nothing in this section shall be
construed to authorize any understand-
ing or agreement, combination or con-
spiracy, or planned common course of
action by and between industry mem-
bers, mutually to conform or restrict
their practice of shipping goods on con-
signment with the intent or effect of
lessening competition.

PART 28—BLUEPRINT AND DIAZO-
TYPE COATERS INDUSTRY

Sec.
28.0 The industry defined.
Group I

28.1 Deception (general).

28.2 False and misleading price quotations,
ete.

238.8 Deceptive invoicing.

28.4 Substitution of products.

28.5 Prohibited sales below cost.

28.6 Commercial bribery.

28.7 Defamation of competitors or false
disparagement of their products.

28.8 Procurement of competitors’ confi-
dential information.

28.9 Enticing away employees of com-

petitors,

§ 28.9

Sec,
28.10 Prohibited forms of trade restraints
(unlawful price fixing, etc.).
28.11 Exclusive deals.
28.12 Prohibited discrimination.
AvutrHorITy: The provisions of this Part 28
issued under secs. 6, 5, 38 Stat. 721, 719; 15
U.S.C. 46, 45, unless otherwise noted.
Sovrce: The provisions of this Part 28 ap-
pear at 21 F.R. 4010, June 12, 1956, unless
otherwise noted.

§ 28.0 The industry defined.

The industry to which these trade
practice rules have application consists
of persons, firms, corporations, and or-
ganizations engaged in the coating and
sale of blueprint and/or diazotype light-
sensitive paper, cloth, film, or other
material, used for reproducing engineer-
ing and architectural drawings, designs,
formulae, and office or business com-
munications.

Group I
§ 28.1- Deception (general).

It is an unfair trade practice to seil,
offer for sale, or distribute any industry
product, or promote the sale or distribu-
tion thereof, under any representation
or by any method or under any circum-
stance or condition which has the capac-
ity and tendency or effect of misieading
or deceiving purchasers or prospective
purchasers:

(a) With respect to the construction
coinposition, design, strength, or dura-
bility of any industry product; or

(b) With respect to @ process or tech-
nique used in the preparation, fabrica-
tion, or coating of any industry product;
or

(c) With respect to the materials used
in the preparation, fabrication, or coat-
ing of any industry product; or

(d) Which is false, misleading, or de-
ceptive in any other materiai respect.

Nore: Dlustrative of the type of misrep-
resentation inhibited by this section is the
practice of an industry member advertising
or otherwise claiming that a paper contains

a certain percentage of rag, or is of a certain
basis weight, when such is not the fact.

§ 28.2 False and misleading price quo-
tations, etc.
The publishing or circulating to pur-
chasers or prospective purchasers by any
member of the industry of faise or mis-

315