(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 industry products are sold or delivered to said purchasers.

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

(3) Nor shall anything contained in this paragraph prevent price changes from time to time where made in response to changing conditions affecting either the market for the products concerned, or the marketability of the products, 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 products concerned.

(c) 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 agent, representative, or other 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.

(d) 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 any advertising or promotional allowances or any other thing 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.

(e) 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 engaged in commerce to discriminate in favor of one purchaser against another purchaser by furnishing certain services or facilities upon terms not accorded to all competing 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.

(f) 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 foregoing provisions of this section.

(g) 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. § 191.25 Unlawful interference with competitors' purchases or sales.

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 raw materials and supplies from whomsoever he chooses, or to sell his product to whomsoever he chooses.

§ 191.26 Aiding or abetting use of unfair trade practices.

It is an unfair trade practice for any person, firm, or corporation to aid, abet,

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.

§ 191.102 Coercion in sales.

The use of buying power to force uneconomic or unjust terms of sale upon sellers, and the use of selling power to force uneconomic or unjust terms of sale upon buyers, are condemned by the industry.

PART 192-OPTICAL PRODUCTS INDUSTRY

Sec. 192.0

192.1 192.2

192.3

192.4

192.5

192.6

192.7

The industry and its products defined.

Deception (general).

False advertising of nonprescription

magnifying spectacles.

False advertising of contact lenses.
Bait advertising.

Guarantees, warranties, etc.
Deceptive pricing.

Prohibited payments by dispensers to doctors: prohibited tying of refractions with dispensing, etc. 192.8 Prohibited discrimination. 192.9 Deception as to origin or place of manufacture.

192.10 Misrepresenting products as conforming to a standard.

192.11 Misrepresentation as to character of business.

192.12 False invoicing.

192.13 Consignment distribution.

192.14 Commercial bribery.

192.15 False disparagement of competitors or their products.

192.16 Coercing purchase of one product as a prerequisite to purchase of another or other products.

192.17 Inducing breach of contract. 192.18 Enticing away employees of competitors.

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

Sec.

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

192.21 Exclusive dealing.

Authority: The provisions of this Part 192 issued under secs. 6, 5, 38 Stat. 721, 719; 15 U.S.C. 46, 45, unless otherwise noted.

SOURCE: The provisions of this Part 192 appear at 27 F.R. 6222, June 30, 1962, unless otherwise noted.

§ 192.0 The industry and its products defined.

(a) Members of the industry are persons, firms, corporations, or organizations engaged in the manufacture, processing, assembly, sale, offering for sale, or distribution of any kind of industry products as the term "industry products" is defined in paragraph (b) of this section.

(b) The term "industry products," as used in paragraph (a) of this section and in the following sections, includes eyeglasses and contact lenses which are designed to provide correction and improvement of eyesight, and parts (lenses, frames, etc.) or accessories therefor. As here used, the term "eyeglasses" includes spectacles and eyeglass clip-ons having nonprescription magnifying lenses, as well as eyeglasses with prescription lenses. Sunglasses, goggles and safety spectacles which are designed solely for the protection of eyes or eyesight, as distinguished from correction or improvement of eyesight, are not included; nor are precision lenses for telescopes, binoculars, etc., to be considered as included.

NOTE: It is to be understood that the word "sale," as used in paragraph (a) of this section and in the sections which follow, is to be construed as including the dispensing of prescription eyeglasses or contact lenses by ophthalmologists, oculists, physicians, or optometrists, to their patients, as well as the dispensing of such products by opticians to their customers.

§ 192.1 Deception (general).

(a) It is an unfair trade practice for any industry member to sell or offer for sale any industry product under any representation, circumstances, or condition, having the capacity and tendency or effect of deceiving a purchaser or prospective purchaser in any material respect.

(b) Among the practices which are to be regarded as prohibited by paragraph (a) of this section are advertisements and sales presentations in newspapers,

magazines, catalogues, telephone directories, radio or television broadcasts, or otherwise, which deceive purchasers or prospective purchasers with respect to: (1) The composition, construction, design, type, quality, durability, or efficacy of any industry product or part thereof;

(2) The identity of the manufacturer, processor, or distributor of any industry product or part thereof;

(3) The conformance of contact lenses, and lenses and frames of eyeglasses, to the requirements of the purchaser as prescribed by an ophthalmologist, oculist, physician, or optometrist;

(4) The extent of vision improvement that may reasonably be expected from use of the advertised eyeglasses or contact lenses;

(5) The probable length of time that the lenses of an advertised product will be satisfactory for use by the wearer without need for polishing, processing, or replacement; or

(6) The immunity or degree of resistance possessed by an industry product, or part thereof, with respect to breakage, discoloration, tarnish, or corrosion. [Rule 1]

§ 192.2 False advertising of non-prescription magnifying spectacles.

It is an unfair trade practice for any industry member to publish, or cause to be published, any advertisement or sales presentation relating to non-prescription magnifying spectacles (sometimes referred to as ready-made spectacles) which represents, directly or by implication, that the spectacles so offered will correct, or are capable of correcting, defects in vision of persons, unless it is clearly and conspicuously disclosed in the advertisement or sales presentation that the correction of defects in vision by such products is limited to persons approximately 40 years of age and older who do not have astigmatism or diseases of the eye and who require only simple magnifying or reducing lenses; or to publish or cause to be published any advertisement or sales presentation which has the capacity and tendency or effect of deceiving purchasers or prospective purchasers in any other material respect. [Rule 2]

contact lenses, for an industry member to publish or cause to be published any advertisement which represents directly or by implication that contact lenses:

(a) Are suitable and safe for all persons, regardless of their age, health, or eye condition;

(b) Can be worn satisfactorily and without discomfort by all, or nearly all, persons;

(c) Can be fitted without any discomfort;

(d) Can be worn for any short or long period without discomfort unless the advertisement clearly reveals that practically all persons will experience some discomfort when first wearing them and that in a significant number of cases the discomfort period may be prolonged;

(e) Can be worn all day without discomfort by any person except after that person has become fully adjusted thereto and unless such is the fact;

(f) Will completely replace eyeglasses in all, or nearly all, cases, or will provide better correction of vision than eyeglasses in all, or nearly all, cases;

(g) Which are bifocal are as satisfactory to the wearer as prescription eyeglasses having bifocal lenses;

(h) Will correct all defects in vision; (1) Will stay in place under all conditions; or under any specified conditions when such is not the fact;

(j) Are unbreakable in all circumstances; or are unbreakable in any indicated circumstances when such is not the fact;

(k) Can be adequately tried without financial obligation, unless such is the fact;

(1) Will protect the eyes, unless such representation is limited in application to the portion of the eyes covered by such lenses and does not denote or connote a greater degree of protection to such portion, than is in fact the case;

(m) Do not rest upon, or have contact with, the eyes;

(n) Are more comfortable than all other types or kinds of contact lenses; (When represented as more comfortable than all other types or kinds, they must be of unique design or construction or have unique features, which assure of comfort during wear superior to that of any other contact lenses currently avallable for purchase;)

(0) Or which is misleading in any other material respect. [Rule 3]

§ 192.4 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 as advertised and at the advertised price.

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, make, value, currency of model, size, usability, or origin of the product offered;

(b) The refusal to show, demonstrate, or sell the product offered in accordance with the terms of the offer;

(c) The disparagement, by acts or words, of the product offered, or the disparagement of the guarantee, credit terms, availability of service, repairs or parts, or in any other respect, in connection with it;

(d) The showing, demonstrating, and in the event of sale, the delivery, of a product which is unusable or impractical for the purpose represented or implied in the offer;

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

(f) The failure to have available a quantity of the advertised product at the advertised price 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.

[Rule 4]

§ 192.5

Guarantees, warranties, etc.

(a) It is an unfair trade practice to represent in advertising or otherwise that a product is "guaranteed" without clear and conspicuous disclosure of:

(1) The nature and extent of the guarantee, and

(2) Any material conditions or limitations in the guarantee which are imposed by the guarantor, and

(3) The manner in which the guarantor will perform thereunder, and

(4) The identity of the guarantor. (b) Guarantees shall not be used which under normal conditions are im

practical of fulfillment or which are for such a period of time or are otherwise of such nature as to have the capacity and tendency of misleading purchasers or prospective purchasers into the belief that the product so guaranteed has a greater degree of serviceability, durability or performance capability in actual use than is true in fact.

(c) This section has application not only to "guarantees" but also to "warranties," to purported "guarantees" and "warranties," and to any promise or representation in the nature of a "guarantee" or "warranty." [Rule 5] § 192.6

Deceptive pricing.

It is an unfair trade practice for any member of the industry to represent directly or indirectly in advertising or otherwise that an industry product may be purchased for a specified price, or at a saving, or at a reduced price, when such is not the fact; or otherwise to deceive purchasers or prospective purchasers with respect to the price of any product offered for sale; or to furnish any means or instumentality by which others engaged in the sale of industry products may make any such representation. Among the types of practices to be regarded as prohibited by this section

are:

(a) Representing or implying in advertising or otherwise that a specified price for prescription eyeglasses or contact lenses includes the cost to the buyer of necessary eye examination and test by an ophthalmologist or optometrist for the purpose of determining the buyer's visual defects and prescribing suitable lenses for the relief or correction thereof, when such is not the case;

(b) Representing or implying in advertising or otherwise that complete eyeglasses are purchasable for a specified price when an additional price is charged for a component part of the complete eyeglasses (such as the frames thereof);

(c) Representing or implying in advertising that a specified price is applicable to all types and kinds of eyeglasses or contact lenses when a higher price is charged for certain kinds or types (e.g., when the stated price has applicability to eyeglasses with single vision lenses and a higher price is charged for eyeglasses with bifocal lenses);

(d) Representing or implying in advertising that contact lenses may be purchased at a specified price when an addi

66-034--72- -12

tional and undisclosed charge is made for processing and fitting services that are necessary and made evident after first use by the buyer and during the period required for his adjustment to the use of such lenses;

(e) Representing or implying in advertising that products may be purchased on credit for the same price that is applicable to cash sales; that no down payment is required in the case of credit sales; that no finance charge or interest is required when products are sold on credit or an installment payment plan; or that a finance or interest charge in the case of sales on credit will not exceed a specified amount or rate; when such are not the facts.

NOTE: On December 20, 1963, the Commission adopted Guides Against Deceptive Pricing which became effective January 8, 1964. Copies thereof will be furnished upon request.

[Rule 6]

[31 F.R. 10667, Aug. 11, 1966]

§ 192.7

Prohibited payments by dispensers to doctors: prohibited tying of refractions with dispensing, etc. (a) As used in this section, the word "doctor" makes reference to any ophthalmologist, oculist, physician, or optometrist, who makes ophthalmic refractions for a patient and prescribes eyeglasses or contact lenses for the correction or improvement of the vision of such patient, and the word “dispenser" makes reference to any party who supplies eyeglasses or contact lenses, so prescribed, to any such patient. The terms are to be understood as embracing any agent, representative, or employee of the doctor or dispenser, and any employer, principal, or associate, corporate Gr otherwise, for which either acts or purports to act.

(b) It is an unfair trade practice for any dispenser to make or give directly or indirectly, to any doctor (whether such dispenser acts or purports to act as an agent of the doctor or otherwise), any payment arising out of or connected with his (the dispenser's) sale or dispensing of eyeglasses or contact lenses to a patient of such doctor, whether such payment be in the form of, or is described or regarded as, a rebate, credit, credit balance, gift, dividend, participation in or share in profits, or otherwise; or for a dispenser to enter into or participate in any agreement, understanding, scheme, plan, or concert of action, with

any doctor, or with any other party or parties, which provides for, or facilitates, any such payments.

NOTE 1: It is to be understood that paragraph (b) of this section does not have application to the dispensing of eyeglasses or contact lenses by a doctor (either himself or through a bona fide employee) in his own professional offices. Such dispensing is, however, to be considered as among the practices which are subject to the prohibitions of paragraph (c) of this section.

NOTE 2: In 1951, in actions instituted by the Department of Justice, decrees were entered in the United States District Court for the Northern District of Illinois, Eastern Division, which have application to oculists and ophthalmologists as a class, as well as other defendants, including ophthalmic dispensers. These decrees perpetually enjoin such doctors:

"(a) From accepting, directly or indirectly, or designating any person to thus accept, from any dispenser (whether such dispenser acts or purports to act as an agent of the doctor, or otherwise), any payment arising out of or connected with dispensing to any patient of such defendant doctor, whether such payment is in the form of, or is described or regarded as, a rebate, credit, credit balance, gift, dividend, participation in or share in profits, or otherwise;

(b) Entering into or participating in any plan, arrangement, or scheme whereby sald defendant doctor receives from any dispenser (whether such dispenser acts or purports to act as agent of the doctor, or otherwise) directly or indirectly in any form (including any of the forms and methods referred to above) any payment arising out of or connected with dispensing to any patient of such defendant doctor."

"

with explanation that the term "dispenser," as so used, does not have application "to a refractionist who engages in dispensing in his own professional offices (either himself or through a bona fide employee) to his own patients only." These decrees remain in force and effect, and nothing in this section, or any of the other sections, is to be construed as relieving any industry member or other party subject to such decrees from complying with the requirements and provisions thereof. In the interest of clarifying certain of the requirements of these decrees the Department has issued opinions in the form of three letters bearing dates of May 28, 1951, September 10, 1951, and September 24, 1951, which are set forth in an appendix to this part.

(c) It is an unfair trade practice to tie in or condition eye refraction service for a patient with the dispensing of the prescribed eyeglasses or contact lenses to the patient, when such practice effects, or has a reasonable probability of effecting, substantial injury to competi