FLORIDA

REGULATION OF PRICE COMPETITION

A. RESALE PRICE MAINTENANCE

Comp. Gen. Laws Ann. (Skillman, Supp., 1940)

Sec. 7100 (14). Short title of act. This act may be known and cited as the "Florida Fair Trade Act." (L. 1937, c. 18395, sec. 10. L. 1930, c. 19201, sec. 10.)

Sec. 7100 (15). Definitions.-The following terms, as used in this act, are hereby defined as follows:

(a) "Commodity" means any subject of commerce.

(b) "Producer" means any grower, baker, maker, manufacturer, bottler, packer, converter, processor, or publisher.

(c) "Wholesaler" means any person selling a commodity other than a producer or retailer.

(d) "Retailer" means any person selling a commodity to consumers

for use.

(e) "Person” means an individual, a corporation, a partnership, an association, a joint-stock company, a business trust, or any unincorporated organization. (Id. sec. 1.)

Sec. 7100 (16). Contracts to govern price of sale or resale.-No contract relating to the sale or resale of 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 commodity and which commodity is in free and open competition with commodities of the same general class produced or distributed by others shall be deemed in violation of any law of the State of Florida by reason of any of the following provisions which may be contained in such contract: (a) That the buyer will not resell such commodity at less than the minimum price stipulated by the seller.

(b) That the buyer will require of any dealer to whom he may resell such commodity an agreement that he will not, in turn, resell at less than the minimum price stipulated by the seller.

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(c) That the seller will not sell such commodity:

(1) To any wholesaler, unless such wholesaler will agree not to resell the same to any retailer unless the retailer will in turn agree not to resell the same except to consumers for use and at not less than the stipulated minimum price, and such wholesaler will likewise agree not to resell the same to any other wholesaler unless such other wholesaler will make the same agreement with any wholesaler or retailer to whom he may resell; or

(2) To any retailer, unless the retailer will agree not to resell the same except to consumers for use and at not less than the stipulated minimum price. (Id. sec. 2.)

Sec. 7100 (17). Acts deemed a violation.-For the purpose of preventing evasion of the resale price restrictions imposed in respect of any commodity by any contract entered into pursuant to the provisions of this act (except to the extent authorized by the said contract).

(a) The offering or giving of any article of value in connection with the sale of such commodity;

(b) The offering or the making of any concession of any kind whatsoever (whether by the giving of coupons or otherwise) in connection with any such sale; or

(c) The sale or offering for sale of such commodity in combination with any other commodity, shall be deemed a violation of such resale price restriction, for which the remedies prescribed by section 7100 (20) of this act shall be available. (Id. sec. 3.)

Sec. 7100 (18). Only owners of trade-marks to establish resale prices. No minimum resale price shall be established for any commodity, under any contract entered into pursuant to the provisions of this law, by any person other than the owner of the trade-mark, brand, or name used in connection with such commodity or a distributor specifically authorized to establish said price by the owner of such trade-mark, brand, or name. (Id. sec. 4.)

Sec. 7100 (19). Exceptions.-No contract containing any of the provisions enumerated in section 7100 (16) of this act shall be deemed to preclude the resale of any commodity covered thereby without reference to such contract in the following cases:

(a) In closing out the owner's stock for the bona fide purpose of discontinuing dealing in any such commodity and when plain notice of the fact is given to the public; provided the owner of such stock shall give to the producer or distributor of such commodity prompt. and reasonable notice in writing of his intention to close out said stock, and an opportunity to purchase such stock at the original invoice price;

(b) When the goods are altered, second-hand, damaged, defaced, or deteriorated, and plain notice of the fact is given to the public in the advertisement and sale thereof, such notice to be conspicuously displayed in all advertisements and to be affixed to the commodity; (c) By any officer acting under an order of court. (Id. sec. 5.) Sec. 7100 (20). Unfair competition defined and made actionable.-Wilfully and knowingly advertising, offering for sale, or selling any commodity at less than the price stipulated in any contract entered into pursuant to the provisions of the law, whether the person so advertising, offering for sale, or selling is or is not a party to such contract, and whether the particular lot of such commodity so advertised, offered for sale, or sold was or was not at any time sold to a party to a contract that stipulated the price of such commodity under the provisions of this law is unfair competition and is actionable at the suit of any person damaged thereby. (Id. sec. 6.)

Sec. 7100 (21). Application.-This act shall not apply to any contract or agreement between or among producers or distributors or (except as provided in subsection (c) of section 7100 (16)) between or among wholesalers, or between or among retailers, as to sale or resale prices. (Id. sec. 7.)

Sec. 7100 (22). Partial invalidity.-If any provision of this law, or the application thereof to any person or circumstance, is held invalid, the remainder of the law, and the application of such provisions to other persons or circumstances, shall not be affected thereby. (Id. sec. 8.)

Constitutionality.

Judicial Decisions

*

The Fair Trade Act (Laws 1937, c. 18395; superceded by new act in 1939) is unconstitutional as being in violation of article III, section 16, of the State Constitution which provides that the title of a statute must express the contents thereof. The language of the title: Through the Use of Voluntary Contracts Establishing Minimum Resale Prices *" implies that the statute validates voluntary resale price contracts and is inconsistent with Section 6 of the statute which binds noncontracting parties, with notice, to enforce resale price restrictions. Bristol-Myers Co. v. Webb's Cut Rate Drug Co., Inc., 137 Fla. 508, 188 So. 91 (1939).

B. PROHIBITION OF SALES BELOW COST

No provisions.

C. ANTIDISCRIMINATION LEGISLATION

1. General Prohibitory Laws

Comp. Gen. Laws Ann. (Skillman, 1927)
Discrimination

Sec. 3939. Unfair discrimination and competition prohibited. Any person, firm, company, association, or corporation, foreign or domestic, doing business in the State of Florida, and engaged in the production, manufacture, sale, or distribution of any commodity in general use, that shall, for the purpose of destroying the business of a competitor in any locality, discriminate between different sections, communities, or cites of this State by selling such commodity at a lower rate in one section, community, or city, than is charged for said commodity by said party in another section, community, or city, after making due allowance for the difference, if any, in the grade or quality and in the actual cost of transportation from the point of production, if a raw product, or from the point of manufacture, if a manufactured product, shall be deemed guilty of unfair discriminastion which is hereby prohibited and declared unlawful. (Ch. 6945, Acts 1915, sec. 1.)

Penalty for unfair commercial discrimination: See sec. 7871.

Sec. 3940. Duty of State attorney, etc.-It shall be the duty of State attorneys, county solicitors, and prosecuting attorneys in their counties, and the attorney general, to enforce the provisions of the preceding section by appropriate actions in courts of competent jurisdiction. (Id. sec. 3.)

Sec. 3941. Complaints made to secretary of state; duty.-If complaint shall be made to the secretary of state that any corporation authorized to do business in this state is guilty of unfair discrimination within the terms of this chapter, it shall be the duty of the secretary of state to refer the matter to the attorney general who may, if the facts justify it in his judgment institute proceedings in the courts against such corporation. (Id. sec. 4.)

Sec. 3942. Secretary of state to revoke permit of corporations found guilty of discrimination.-If any corporation, foreign, or domestic, authorized to do business in this State, is found guilty of unfair discrimination within the terms of this chapter, it shall be the duty of the secretary of state to immediately revoke the permit of such corporation to do business in this State. (Id. sec. 5.)

Sec. 3943. Ouster of corporation found guilty.-If after revocation of its permit, such corporation, or any other corporation not having a permit and found guilty of having violated any of the

provisions of this chapter, shall continue or attempt to do business in this State, it shall be the duty of the attorney general, by a proper suit in the name of the State of Florida, to oust such corporation. from all business of every kind and character in said State of Florida. (Id. sec. 6.)

Sec. 7871. Unfair commercial discrimination prohibited. Any person, firm, company, association, or corporation violating any of the provisions of section 3939, and any officer, agent, or receiver of any firm, company, association, or corporation, or any member of the same, or any individual, found guilty of a violation thereof, shall be fined not more than five thousand dollars or be imprisoned in the county jail not to exceed one year, or suffer both penalties. (Ch. 6945, Acts 1915, sec. 2.)

2. Special Prohibitory Laws

Comp. Gen. Laws Ann. (Skillman, 1927)
Fertilizer

Sec. 3822. Sale of fertilizer to farmers in carload lots.-It shall be unlawful for any manufacturer of fertilizers in this State to charge any farmer or farmers or other user or users in this State for fertilizers sold to such farmers or users for cash by carload lots more than is charged by such manufacturer for fertilizers of the same quality to merchants or dealers in the same county; and in determining what the price charged by such manufacturer to merchants or dealers is, all rebates or drawbacks of any character shall be ignored and the amount actually received and retained by such manufacturer shall be regarded as the price charged for such fertilizers. (Ch. 7382, Acts 1917, sec. 1.)

Sec. 3823. Test for determining quality.-The test for determining the quality of such fertilizers shall be made in the same manner as is now provided by law for testing the grade or quality of fertilizers, and certificates issued by the state chemist or assistant state chemist showing results of such tests shall be competent evidence in any court of law or equity in this State. (Id. sec. 2.)

Sec. 3824. Forfeiture for violation.-For each violation of sections 3822 and 3823 the manufacturer making the sale shall forfeit and pay to the purchaser discriminated against one-half of the amount received for such fertilizers, which amount shall be recoverable from the manufacturer in a suit brought by the purchaser in the court having jurisdiction of the amount involved in the county of the residence of the purchaser. (Id. sec. 3.)