restrain trade, tend to create a monopoly, or substantially lessen competition, is an unfair trade practice.

(a) This section is not to be construed as prohibiting all sales below cost, but only such selling below the seller's cost as is resorted to and pursued as a monopolistic practice with the wrongful intent referred to and coupled with the effect of unreasonably restraining trade, tending to create a monopoly, or substantially lessening competition.

(b) The costs referred to in the 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.

§ 189.14 Combination or coercion to fix prices, suppress competition, or restrain 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, directly or indirectly, any agreement, understanding, combination, conspiracy, or concerted action with one or more members of the industry, or with one or more other persons, to unlawfully fix, maintain, or enhance prices, suppress competition, or restrain trade. § 189.15

Prohibited discrimination.1

(a) Prohibited discriminatory prices, or rebates, refunds, discounts, credits, etc., which effect unlawful price discrimination. In the marketing in commerce of products of the industry of like grade and quality for use, consumption, or resale within the jurisdiction of the United States, and subject to subpara

1 As used throughout this section the word "commerce" 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 District of Columbia or any foreign nation, or within the District of Columbia or any Territory or any insular possession or other place under the jurisdiction of the United States."

graph (1) (i), (ii) and (iii) of this paragraph, it is an unfair trade practice for any member of the industry engaged therein to discriminate in price between different purchasers where the effect thereof may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with such industry member or with any person who knowingly receives the benefit of such discrimination or with their customers.

(1) The inhibitions against such discrimination in price shall be applicable irrespective of whether the discrimination in price itself is effected in the form, or through the means, of rebates, refunds, discounts, credits, allowances, or other form of price differential.

(1) However, nothing contained in this paragraph shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which the products are sold or delivered to said purchasers.

(ii) Nor shall anything contained in this paragraph prevent persons engaged in selling products in commerce from selecting their own customers in bona fide transactions and not in restraint of trade.

(iii) Nor shall anything contained in this paragraph prevent price changes from time to time where made in response to changing conditions affecting the market for or the marketability of the goods concerned, such as but not limited to actual or imminent deterioration of perishable goods, obsolescence of seasonal goods, distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned.

(b) Prohibited brokerage or commissions. In the selling of industry products in commerce, it is an unfair trade practice for any member of the industry engaged therein to pay or grant, or to receive or accept, any commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of such products, either to the other party to such transaction or to an agent, representative, 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 trans

action other than the person by whom such compensation is so granted or paid. (c) Prohibited advertising or promotional allowances, etc. In the selling of industry products in commerce by any member of the industry, and in the course thereof, it is an unfair trade practice for such member to pay or contract for the payment of anything of value to or for the benefit of his customer as compensation or in consideration for certain services or facilities furnished by or through such customer, unless such payment or consideration is available on proportionally equal terms to all other customers of such member competing in the distribution of such products.

(1) As used in this paragraph, the certain services or facilities referred to are such as are furnished by or through the customer in connection with the processing, handling, sale, or offering for sale, of such industry member's products.

(d) Prohibited discrimination in services or facilities. In the sale of industry products bought for resale, with or without processing, it is an unfair trade practice for any member of the industry to discriminate in favor of one purchaser against another purchaser by furnishing certain services or facilities upon terms not accorded to all purchasers on proportionally equal terms.

(1) Said services or facilities referred to in this paragraph are such as are connected with the processing, handling, sale, or offering for sale, of the products purchased, and the term "furnishing" as used in this paragraph shall be construed as including contracting to furnish, and contributing to the furnishing of, the services or facilities.

(e) Inducing or receiving an illegal discrimination in price. It is an unfair trade practice for any member of the industry, in the course of commerce in which he is engaged, knowingly to induce or receive a discrimination in price which is prohibited by the provisions in paragraphs (a) to (d) of this section.

(f) Exemptions. The inhibitions of this section shall not apply to purchases of their supplies for their own use by schools, colleges, universities, public libraries, churches, hospitals, and charitable institutions not operated for profit. $ 189.16 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 as a prerequisite

§ 189.102

Return of merchandise.

The practice, by members of the industry, of selling merchandise and later permitting the purchaser to return it for credit or refund of purchase price, without 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 the requirements and limitations named in § 189.15. § 189.103 Price lists.

The industry approves the practice of each individual member of the industry independently publishing and circulating to customers and prospective customers his own price lists. The industry also approves the practice of such member including his terms of sale, independently arrived at, as part of his own published price list.

§ 189.104 Cost records.

(a) It is the judgment of the industry that each member should independently keep proper and accurate records for determining his costs.

(b) It is the judgment of the industry that the individual and independent use by any member of sound cost-accounting methods, whereby such member's own

The industry records its approval of the distribution among members of the industry of information covering delinquent and slow credit accounts insofar as such may be lawfully done.

§ 189.106 Repudiation of contracts.

Lawful contracts are business obligations which should be performed in letter and in spirit. The repudiation of contracts by sellers or by buyers is condemned by the industry.

§ 189.107 Saturday-Sunday closing.

In the interest of the public and industry employees, it is recommended by the industry that the members adhere to the usual practice of not opening their places of business on Saturdays and Sundays for the transaction of business. § 189.108 Labor conditions.

It is the judgment of the industry that the elimination of oppressive child labor and the establishment of adequate minimum wages and reasonable maximum hours of work by all members of the industry are principles to be encouraged as being in the public interest and conducive to fair competition.

§ 189.109 Statistical information.

The members of the industry believe that the collection and publication in the widest possible manner of statistics respecting market information on the operations of the industry as a whole will prove helpful to all interested parties. Such statistics shall not be compiled, disseminated, or used in any manner which has the effect of revealing the identity of an industry member, information peculiar to the operations of an industry member, or transactions engaged in by an industry member or a buyer of industry products; nor shall any person be compelled to furnish any data contemplated by this section.

AUTHORITY: The provisions of this Part 190 issued under secs. 6, 5, 38 Stat. 721, 719; 15 U.S.C. 46, 45.

SOURCE: The provisions of this Part 190 appear at 15 F.R. 4000, June 22, 1950, unless otherwise noted.

(a) Prohibited discriminatory prices, or discounts, rebates, refunds, credits, etc., which effect unlawful price discrimination. It is an unfair trade practice for any member of the industry engaged in commerce, in the course of such commerce, to grant or allow, secretly or openly, directly or indirectly, any discount, rebate, refund, credit, or other form of price differential (whether in the guise of free goods or otherwise), where such discount, rebate, refund, credit, or other form of price differential, effects a discrimination in price between different purchasers of goods of like grade and quality, where either or any of the purchases involved therein are in commerce, and where the effect thereof may be substantially to lessen competition or tend to create a monopoly 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, however,

(1) That the goods involved in any such transaction are sold for use, consumption, or resale within any place under the jurisdiction of the United States;

(2) That nothing contained in this paragraph shall prevent differentials which make only due allowance for differences 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 paragraph shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade;

1 As used throughout 190.1, the word "commerce" 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 District of Columbia or any foreign nation, or within the District of Columbia or any Territory or any insular possession or other place under the jurisdiction of the United States."

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

(b) Prohibited brokerage and commissions. It is an unfair trade practice for any member of the industry engaged in commerce, in the course of such commerce, to pay or grant, or to receive or accept, anything of value as a commission, 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 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 compensation is so granted or paid.

(c) Prohibited advertising or promotional 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 facilities furnished by or through such customer 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 proportionally equal terms to all other customers competing in the distribution of such products or commodities.

(d) Prohibited discriminatory services or facilities. It is an unfair trade practice for any member of the industry engaged in commerce 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 furnish or furnishing, or by contributing to the furnishing of, any services or facilities connected with the processing, handling,

§ 190.2

Inducing breach of contract.

It is an unfair trade practice to induce or attempt to induce the breach of existing lawful contracts between competitors and their customers or their suppliers by any false or deceptive means whatsoever, or to interfere with or obstruct the performance of any such contractual duties or services by any such means, with the purpose and effect of unduly hampering, injuring, or prejudicing competitors in their business.

§ 190.3 False invoicing.

(a) Withholding from or inserting in invoices, or sales purchase slips, any statements or information by reason of which omission or insertion a false record is made, wholly or in part, of the transactions represented on the face of such invoices, or sales purchase slips, with the effect of thereby misleading or deceiving purchasers, prospective purchasers, or the buying public, is an unfair trade practice.

(b) To falsify, remove, or fail to furnish, any invoice, sales purchase slip, or other record, with the effect of thereby deceiving purchasers, prospective purchasers, or the buying public, is an unfair trade practice.

§ 190.4 Selling below cost.

The practice of selling products of the industry 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, is an unfair trade practice. As used in this section,

the term "cost" means the total cost to the seller of any such transactions of sale, including the costs of acquisition, processing, preparation for marketing, sale, and delivery of such products. § 190.5 Commercial bribery.

It is an unfair trade practice for a member of the industry, directly or indirectly, to give or offer to give, or permit or cause to be given, money or anything of value to agents, employees, or representatives of customers or prospective customers, or to agents, employees, or representatives of competitors' customers 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 any shoe service supplies, equipment, or material sold by such industry member 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 contracting to deal with competitors.

§ 190.6 Coercing purchase of one product as a prerequisite to 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.