referred to and coupled with the effect of unreasonably restraining trade, tending to create a monopoly or substantially lessening competition. Sales below cost by a competitor not in a sufficiently strong competitive position to produce, and not actually producing, the monopolistic or restraining effect mentioned, do not fall within the inhibitions of this section.

(c) The costs 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. § 97.18 Unlawful interference.

It is an unfair trade practice for any member of the industry, by means of any monopolistic practices, or through combination, conspiracy, coercion, boycott, threats or any other unlawful means, directly or indirectly, to interfere with a competitor's right to purchase his materials and supplies from whomsoever he chooses, or to sell to whomsoever he chooses.

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

1 Paragraph (a) of § 97.19 shall not be construed as embracing practices prohibited by paragraph (b), (c) and (d) of this section.

(2) That nothing contained in this section 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 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 section shall prevent price change 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, 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 by 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 purchasers on proportionally 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.

It is an unfair trade practice for any 'person, firm, or corporation to aid, abet, coerce or induce another, directly or indirectly, to use or promote the use of any unfair trade practice specified in this part.

tion, control or prevention of the return of merchandise.

§ 97.103 Repudiation of contracts.

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

§ 97.104 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.

False marking or branding.

99.6

99.7

99.8

99.9

99.10

Defamation of competitors.

GROUP II

§ 97.101 Publication of price lists and terms of sale.

99.15

99.16

The industry approves the practice of each individual member of the industry independently publishing and circulating to the purchasing trade his own price lists fully setting forth his terms of sale. § 97.102 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 general limitation that members of the industry shall not engage in any combination or conspiracy in restraint of trade or use any other illegal methods in the regula

Substitution.

Misrepresentation in general.

Substitution of inferior materials.

Deceiving competitors as to bids of others.

99.107

Fictitious bids.

99.108

§ 99.4

False marking or branding.

The false marking or branding of products of the industry, with the effect of misleading or deceiving purchasers with respect to the quantity, quality, grade or substance of the goods purchased, is an unfair trade practice. § 99.6 Inducing breach of contract.

Willfully inducing or attempting to induce the breach of existing contracts between competitors and their customers 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 embarrassing competitors in their businesses, is an unfair trade practice.

§ 99.7 Imitation of trade-marks, trade names, etc.

The imitation of the trade-marks, trade names, slogans, or other marks of identification of competitors, having the

tendency and capacity to mislead or deceive purchasers or prospective purchasers, is an unfair trade practice.

§ 99.8 Consignment selling.

The shipment of goods on consignment, with the intent and with the effect of injuring a competitor and 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.

§ 99.9 Enticing employees.

Willfully enticing away the employees of competitors with the purpose and effect of unduly hampering, injuring, or embarrassing competitors in their businesses is an unfair trade practice. § 99.10 Defamation of competitors.

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 grade or quality of their goods, with the tendency and capacity to mislead or deceive purchasers or prospective purchasers, is an unfair trade practice.

The practice of shipping or delivering products which do not conform to the samples submitted or representations made prior to securing the orders, without the consent of the purchasers to such substitutions, and with the effect of deceiving or misleading purchasers, is an unfair trade practice.

§ 99.12 Deceptive selling methods.

The sale or offering for sale of any product of the industry by any false means or device which has the tendency and capacity to mislead or deceive customers or prospective customers as to the quantity, quality, substance or size of such product is an unfair trade practice. § 99.13 Misrepresentation in general.

The making, or causing or permitting to be made or published, of any false, untrue, or deceptive statement by way of advertisement or otherwise concerning the grade, quality, quantity, substance, character, nature, origin, size, or preparation of any product of the industry, having the tendency and capacity to mislead or deceive purchasers or prospective purchasers, is an unfair trade practice.

§ 99.14 Espionage.

Securing information from competitors concerning their businesses by false or misleading statements or representations or by false impersonations of one in authority and the wrongful use thereof to unduly hinder or stifle the competition of such competitors is an unfair trade practice.

§ 99.15 Substitution of inferior materials.

The practice of using or substituting in structures materials inferior in quality to those specified by the purchasers, without the consent of the purchasers to such uses or substitutions, and with the effect of deceiving or misleading such purchasers, or the use of materials inferior in quality to those required by the applicable governmental laws, rules and regulations in the territory affected, is an unfair trade practice.

The industry approved the practice of handling disputes 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 arrive at an agreement. If unable to do so they should agree, if possible, upon arbitration under some one of the prevailing codes.

§ 99.107 Fictitious bids.

The industry approves of the "one-bid" policy and condemns fake or fictitious bids made for the purpose of deceiving 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.

§ 99.108 Publication of price lists and terms of sale.

(a) The industry approves the practice of each individual member of the industry independently publishing and circulating to the purchasing trade his own price lists.

(b) The industry approves the practice of making the terms of sale a part of all published price schedules.

§ 99.109 Unethical acquisition of bid

information.

Surreptitiously obtaining information relative to competitors' bids in the preparation of one's own bid is condemned by the industry.

§ 99.110 Dissemination of credit in

formation.

The industry records its approval of distributing to its members information covering delinquent and slow accounts insofar as this may be lawfully done. § 99.111 Unauthorized use of designs,

etc.

The practice of usurping designs, styles, or patterns, originated by a competitor and appropriating the for one's own use within 5 years after such origination, is condemned by the industry. § 99.112 Classification of product.

For the benefit of the granite industry and the purchasing public the granite designated and known throughout the country as Barre granite is classified into

three grades as follows: 1. Dark monumental granite shall be that grade of material suitable for polishing but adaptable for all finishes; 2. Light monumental granite shall be that grade of material adapted to all finishes except polishing; 3. Light mausoleum granite shall be that grade of inaterial which because of the texture is not suitable for monumental purposes but which custom has accepted as the standard grade for mausoleum use.

§ 99.113

Tolerance in measurements.

Owing to the nature of the material, in filling an order for a monument of certain specified dimensions the industry approves of the established practice of permitting an allowance of one-half inch on any dimension.

§ 99.114 Solicitation of information with a view to price cutting.

To induce or attempt to induce an architect, owner, builder or retailer to reveal to a bidder the amounts and conditions of any bid received on a competitive job, with a view of giving the favored - concern an opportunity to meet or cut below the lowest bid, whether the favored <concern was one of the original bidders or not, is condemned by the industry. 99.115 Solicitation of favors in

bidding.

The inducing or attempting to induce an architect, owner, builder or retailer to reveal to any bidder on a competitive job information relative to bids already received, which information would give the favored bidder an advantage in the preparation of his own bid, is condemned by the industry

§ 99.116 Cost accounting.

It is the judgment of the industry that each member should install a proper and accurate method for determining his .cost.

§ 99.119 Superficial foot as unit of measure; tolerances.

The industry recognizes the superficial foot as a unit of measure in slabs. The industry further recognizes that the working size of a dimension slab shall be construed as allowing not over 2 inches oversize and on mill length slabs not over 10 percent allowance on length and not over 2 inches on width.

§ 99.120 Cubic foot as unit of measure; tolerances.

The industry recognizes the cubic foot as a unit of measure. The industry further recognizes that the working size of said unit on rough dimension stock shall be construed as permitting an allowance of 2 inches or less on any dimension. § 99.121 Gratuities or gifts to purchasers.

The giving of gratuities to purchasers solely for the purpose of securing their patronage promotes illegitimate salesmanship, frequently leads to bribery, and is condemned by the industry.

COMMITTEE ON TRADE PRACTICES

§ 99.201 Industry committee.

The provisions of § 16.1 of this subchapter shall be applicable to an industry committee established under this part. [21 F.R. 1174, Feb. 21, 1956]

§ 99.117 Repudiation of contracts. Contracts, either written or oral, are business obligations which should be performed in letter and spirit. The repudiation of contracts by sellers on a rising market, or by buyers on a declining market, is equally reprehensible, and is condemned by the industry.

Substitution of products.

Defamation of competitors or disparagement of their products.

Commercial bribery.