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ceiving competitors and securing undue advantage. If plans and specifications are changed and new bids called for after the original bids have been submitted and opened, the same fairness should obtain as with the original bid.

§ 101.103 Identical information to all bidders.

Where the buyer furnishes to one bidder, directly or indirectly, pertinent information concerning the bidding, or an interpretation of some feature of the specifications, giving this bidder an undue advantage over his competitors who have not received the same information, the industry recommends that such information or interpretation be made available to all other bidders by the buyer or his representative.

§ 101.104 Arbitration.

The industry approves the practice of handling business disputes between members of the industry and their customers 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 arbitration.

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§ 103.0 The industry and its products defined.

(a) Products of the industry covered by the rules in this part include all types, breeds, varieties, or strains of live domestic rabbits or cavies.

(b) Members of the industry are persons, firms, corporations, and organizations engaged in the sale, offering for sale, or distribution of any such products. § 103.1 Misrepresentation of products.

In the sale, offering for sale, or distribution of industry products, it is an unfair trade practice for any member of the industry to make or publish, or cause to be made or published, any statement or representation (whether in the form of advertisement, trade promotional literature, mark, stamp, brand, label, depiction, photograph, illustration, radio or television broadcast, or otherwise) which, directly or by implication, has the capacity and tendency or effect of deceiving purchasers or prospective purchasers concerning:

(a) The grade, quality, quantity, age, price, value, pedigree, registration, origin, weight, health, strength, growth, livability, size, productivity, breeding, raising, or desirability, of any industry product; or

(b) The hair of any industry product, the growth, use, grade, or value thereof, or the market for such hair; or

(c) The delivery or purported delivery dates or other terms or conditions of delivery or sale of any industry product; or

(d) The experience needed, or purported gross sales, income, profits, or opportunities, in connection with the breeding, raising, or marketing of any industry product; or

(e) Any other material matter relating to the breeding, raising, or marketing of such product.

§ 103.2 Misrepresentation prolificacy, growth,

concerning disease-resistance, development of superior meat, fur, or hair, etc.

It is an unfair trade practice for any industry member to represent, directly or by implication, through advertising or otherwise, that any rabbits or cavies, or breeds, or varieties, or strains thereof, are more prolific or grow faster, are more disease-resistant, or develop a higher quality of meat, fur, or hair, than is in fact the case.

§ 103.3 Misrepresenting industry prod ucts as meeting requirements of a standard or specification.

In the sale, offering for sale, or distribution of industry products, it is an unfair trade practice, directly or indirectly, to represent:

(a) That an industry product meets the requirements of a standard or specification, or any quality rating or designation provided for by a standard or specification, when such is not the fact;

or

(b) That an industry product meets the requirements of a standard or specification, or any quality rating or designation provided for by a standard or specification, without a clear and adequate identification of such standard or specification and disclosure as to whether same is an official, industry, or private standard or specification, made in immediate conjunction with the representation; or

(c) That an industry product meets the requirements of a standard or specification which is not applicable to industry products, or which has been rescinded or superseded and no clear and adequate disclosure of such fact is made in immediate conjunction with the representation; or to make reference to any standard or specification, or any quality rating, grade, or designation provided for by any standard or specification, in such a manner, or under such circumstances as to mislead purchasers or prospective purchasers as to the kind, grade. or quality of any product of the industry.

§ 103.4 Misrepresentation as to charac ter of business.

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fact, or (b) that he will buy back such offspring at any price or prices in excess of those he actually will pay for the rabbit or cavy young of stock purchased from him.

§ 103.6 Bait advertising.

It is an unfair trade practice for an industry member to offer for sale any industry product when the offer is not a bona fide effort to sell the product so offered.

NOTE: In determining whether there has been a violation of this section, consideration will be given to acts or practices indicating that the offer was not made in good faith for the purpose of selling the advertised product, but was made for the purpose of contacting prospective purchasers and selling them a product or products other than the product offered. Among acts or practices which will be considered in making that determination are the following:

(a) The creation, through the initial offer or advertisement, of a false impression of the grade, quality, value, size, or origin of the product offered, or in other material respect.

(b) The disparagement, by acts or words, of the product offered.

(c) The refusal, in the event of sale of the product offered, to deliver such product to the buyer within a reasonable time thereafter.

(d) The failure to have available a quantity of the advertised product sufficient to meet reasonably anticipated demands.

It is not necessary that each act or practice set forth above be present in order to establish that a particular offer is violative of this section.

§ 103.7 Defamation of competitors or false disparagement of their prod

ucts.

It is an unfair trade practice:

(a) To defame competitors by falsely imputing to them dishonorable conduct, inability to perform contracts, questionable credit standing, or by other false representations; or

(b) To falsely disparage a competitor's products, business methods, selling prices, values, credit terms, policies, or services.

§ 103.8 Prohibited discrimination.'

(a) Prohibited discriminatory prices, rebates, refunds, discounts, credits, etc.,

As used in 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,

which effect unlawful price discrimination. It is an unfair trade practice for any industry member engaged in commerce, in the course of such commerce, to grant or allow, secretly or openly, directly or indirectly, any rebate, refund, discount, credit, or other form of price differential, where such rebate, refund, discount, 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, and are not purchased by schools, colleges, universities, public libraries, churches, hospitals, and charitable institutions not operated for profit, as supplies for their own use;

(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;

NOTE: Cost justification under subparagraph (2) of this paragraph depends upon net savings in cost based on all facts relevant to the transactions under the terms of this proviso. For example, if a seller regularly grants a discount based upon the purchase of a specified quantity by a single order for a single delivery, and this discount is justified by cost differences, it does not follow that the same discount can be cost justified if granted to a purchaser of the same quantity by multiple orders or for multiple deliveries.

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."

(3) That nothing contained in this section 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;

(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 distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned.

(5) That nothing contained in this section shall prevent the meeting in good faith of an equally low price of a competitor.

NOTE: See subsection (b) of section 2 of the Clayton Act as amended, which is set forth in the note following paragraph (e) of this section.

(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 seryices 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 propor

tionally 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, sale, or offering for sale of such commodity so purchased upon terms not accorded to all competing purchasers on proportionally equal terms.

NOTE: See subsection (b) of section 2 of the Clayton Act as amended, which is set forth in the note following paragraph (e) of this section.

(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.

NOTE: This paragraph is a restatement of section 2 (1) of the Clayton Act as amended. In a complaint proceeding under this section, in order to make out a prima facie violation, the Commission must show that the favored buyer induced or received the lower price knowing, or knowing facts from which he should have known, that such price was violative of section 2 (a) of said act and not justified under subparagraphs (2), (4), or (5) of paragraph (a) of this section. When, in any such proceeding, the issue is limited to the question of whether the price differential involved made only due allowance for differences in cost of manufacturing, sale, or delivery resulting from the differing methods or quantities in which the goods were sold and delivered, the Commission may establish a prima facie case in a number of ways, including:

(1) By showing that the buyer paying the lower price knew that the methods by, and quantities in, which the goods were sold and delivered to him by the seller were the same as in the case of the competing buyer or buyers paying the higher price or prices;

or

(2) By showing, when there is a difference in the methods or quantities in which the goods were sold and delivered by the seller to the buyer than in the case of the competing buyer or buyers paying the higher price or prices, that the buyer paying the lower price or prices knew the nature and extent of such differences and knew or should

have known that they could not have resulted in sufficient cost savings of the kind and character specified as to justify the price differential.

NOTE: This section is based on the provisions of section 2 of the Clayton Act as amended by the Robinson-Patman Act.

Subsection (b) of section 2 of the Clayton Act, as amended, to which reference is made in the note to subparagraph (5) of paragraph (a) of this section and in the note to paragraph (d) of this section reads as follows:

"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 rebutting the prima facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing herein contained shall prevent a seller rebutting the prima facie case thus made by showing that his lower price or the furnishing 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."

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(a) Industry member. Any person, firm, corporation or organization engaged in the distribution of industry products as defined below.

(b) Industry products. Industry products consist of all forms of finished tobacco for human use and include cigarettes, cigars, pipe tobacco, chewing tobacco and snuff.

§ 105.1 Misrepresentation and deception in general.

It is an unfair trade practice to use, or cause or promote the use of, any trade promotional literature, advertising matter, guarantee, warranty, mark, brand, label, trade name, picture, design or device, designation, or other type of oral or written representation, however disseminated or published, which directly or by implication, or through failure to disclose material information has the capacity and tendency or effect of misleading or deceiving purchasers or prospective purchasers with respect to the type, kind, brand, grade, quality, quantity, size, weight, nature, substance, origin, preparation, production, manufacture, distribution, or customary and usual price, of any product of the industry, or which otherwise has the capacity and tendency or effect of misleading or deceiving purchasers prospective purchasers. [Rule 11

§ 105.2 False invoicing.

or

Withholding from or inserting in invoices 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, when having the capacity and tendency or effect of thereby misleading or deceiving purchasers, prospective purchasers, or the consuming public, in any material respect, is an unfair trade practice. [Rule 2]

§ 105.3 Misrepresentation as to charac ter of business.

(a) It is an unfair trade practice for any member of the industry, in connec

tion with the distribution of industry products, to misrepresent, directly or indirectly, by means of advertising, letterheads, telephone listings, oral statements, or otherwise, the character, extent, or type of his business.

(b) When an industry member sells industry products at both wholesale and at retail in the same establishment, it is an unfair trade practice for such industry member to sell any such products under circumstances having the capacity and tendency or effect of causing purchasers to believe that they are buying at wholesale prices when such is not the case. [Rule 3]

§ 105.4 Deceptive use or imitation or simulation of trade or corporate names, trade-marks, etc.

It is an unfair trade practice for any member of the industry:

(a) to imitate or simulate the trademarks, trade names, brands, or labels of competitors, with the capacity and tendency or effect of misleading or deceiving purchasers or prospective purchasers; or

(b) to use any trade name, corporate name, trade-mark, or other trade designation, which has the capacity and tendency or effect of misleading or deceiving purchasers or prospective purchasers as to the name, nature, or origin of any product of the industry, or of any material used therein, or which is false, deceptive, or misleading in any other material respect. [Rule 4]

§ 105.5 False and misleading price quotations, etc.

The publishing or circulating to purchasers or prospective purchasers 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 purchasers or prospective purchasers, is an unfair trade practice. [Rule 5]

§ 105.6 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 disparagement of the products of competitors in any respect, or of their business

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