provisions of chapter 2600 of the public laws, 1938, as amended, and of the general laws of 1938, and thereupon, all acts and parts of acts inconsistent herewith are hereby repealed.

C. ANTIDISCRIMINATION LEGISLATION

No provisions.

No provisions.

1. General Prohibitory Laws

2. Special Prohibitory Laws

SOUTH CAROLINA

REGULATION OF PRICE COMPETITION

1

A. RESALE PRICE MAINTENANCE 1

Code (Supp. 1938)

Section 6044-1. Definitions.-Be it enacted by the general assembly of the State of South Carolina: 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, corporation, partnership, association, joint-stock company, business trust, or any unincorporated organization. (L. 1937, p. 301.)

Sec. 6044-2. Provisions contained in contract for sale or resale of commodity bearing trade-mark, brand, or name of producer, distributor, or owner.-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, distributor, or owner of such commodity, and which is in fair and open competition with commodities of the same general class produced by others, shall be deemed in violation of any law of the State of South Carolina by reason of any of the following provisions which may be contained in said contract.

'The Fair Trade Act is constitutional citing Old Dearborn Distributing Co. v. Seagram-Distillers Corp., 299 U. S. 183, 57 Sup. Ct. 139, 81 L. Ed. 109 (1936) (see Resale Price Maintenance, Illinois, supra). Calvert Distilling Co. v. Brandon, 24 Fed. Supp. 857 (1938). See also Miles Laboratories, Inc., v. Seignious, 30 Fed. Supp. 549 (1939).

A noncontracting retailer with notice of the price restriction is bound by it. Calvert Distilling Co. v. Brandon, supra.

Where plaintiff sued defendant for violation of a fair trade agreement knowing that other retailers would follow defendant's actions, defendant cannot claim discriminatory enforcement as a defense. Ibid.

(a) That the buyer will not resell such commodity at less than the minimum price stipulated by the vendor.

(b) That the producer or vendee of a commodity require upon the sale of such commodity to another that such purchaser agree that he will not, in turn, resell at less than the minimum price stipulated by such producer or vendee. Provided, That such provisions in any contract shall be deemed to contain or imply conditions that such commodity may be resold without reference to such agreement in the following cases:

(a) In closing out the owner's stock for the purpose of discontinuing dealing in such commodity: Provided, however, That such stock is first offered to the producer or distributor of such stock at the original invoice price, at least ten days before such stock shall be offered for sale to the public.

(b) When the goods are damaged or deteriorated in quality and one week's notice is given to the public thereof by publication in a newspaper published in the county where the seller's place of business is located.

(c) By any officer acting under the orders of any court. (Id.) Sec. 6044-3. Unfair competition.-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 this act, whether the person so advertising, offering for sale, or selling is or is not a party to such contract is unfair competition and is actionable at the suit of any person damaged thereby. (Id.)

Sec. 6044-4. Contracts exempted.-This act shall not apply to any contract or agreement between producers, or between wholesalers, or between retailers as to the sale or resale prices. (Id.)

Sec. 6044-5. Invalidity.-If any provision of this section is declared unconstitutional it is the intent of the legislature that the remaining portions thereof shall not be affected but that such remaining portions remain in full force and effect.

Sec. 6044-6. Short title.-This act may be known and cited as "The Fair Trade Act."

B. PROHIBITION OF SALES BELOW COST

Code (1932)

Sales Below Cost of Manufacture

Sec. 6634. Sales at less than cost of manufacture, for purpose of injuring competitors, prohibited.-If any person, persons, company, partnership, association or corporation engaged in the manufacture, sale or distribution of any commodity in general use in this

State shall, with the intent or purpose of driving out competition, or for the purpose of financially injuring competitors, sell at less than cost of manufacture, or at less than the cost of such commodity bought in the open markets plus the freight and other charges to point of destination, or give away such product for the purpose of driving out competition, or financially injuring competitors engaged in the manfacture, sale or distribution of such commodity in this State, said person, persons, company, partnership, association or corporation resorting to this method of securing a monopoly in the manufacture, refining, sale or distribution of such commodity in this State, shall be deemed guilty of a conspiracy to form or secure a trust or monopoly in restraint of trade, and further deemed guilty of unfair discrimination, which is hereby prohibited and declared to be unlawful: Provided, That suit shall be brought in the manner hereinbefore provided in section 6627 and the same penalties therein provided shall apply, and the attorney general shall be authorized to proceed as provided in sections 6624, 6625, and 6634 to 6639 to enforce the provisions thereof: Provided, That each sale so proven under the provisions of this section shall be considered a separate offense. (Civ. C. 22, sec. 3544; Civ. C. '12, sec. 2451; 1902, XXIII, 1057; 1927, XXXV, 115.)

For procedural and penalty provisions. See MARKETING LAWS SURVEY volume: State Antitrust Laws; General Antitrust Laws.

C. ANTIDISCRIMINATION LEGISLATION

1. General Prohibitory Laws

Code (1932)

Sec. 6626. Unlawful to discriminate unfairly to destroy competitor's business. Any person, firm, company, association, or corporation, foreign or domestic, doing business in the State of South Carolina, and engaged in the production, manufacture, or distribution of any commodity in general use, that for the purpose of injuring or destroying the business of a competitor in any town, village, city, or locality discriminate (s) between different purchasers of such commodity in general use in such village, town, or cities in this State, or discriminate (s) between such purchasers in different sections, communities, cities, or towns of this State, by selling such commodity at a lower rate to one purchaser in the same city, town, section, community than is charged for said commodity by a person, firm, company, association, or corporation in another section of said city, town, community, or locality in this State, 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 discrimination, which is hereby prohibited and declared to be unlawful: Provided, That any plan, scheme, device, or agreement which would take away or affect to an appreciable extent the business of a competitor and thus make it unreasonable financially for such competitor to compete with or meet the prices of such seller, shall be deemed and considered unfair discrimination under the terms of this section, and each separate sale or transaction at the price or under the plan complained of shall be deemed a separate offense under the provisions of section 6626 to 6633, inclusive: Provided, further, That all proceedings under this section shall be brought in the manner hereinafter required and provided, tried in a court of competent jurisdiction in the same manner that proceedings at law are now tried and heard in such courts.2 (Civ. C. 22, sec. 3536; Civ. C. '12, sec. 2443; 1909, XXVI, 19; 1927, XXXV, 115.)

Sec. 6627. Penalty for violation of preceding section.-Any person, firm, company, association, or corporation violating any of the provisions of the preceding section, and any officer, agent, or receiver of any firm, company, association, or corporation, or any member of the same, or any individual guilty of a violation thereof, shall be liable for a penalty of not less than five hundred dollars ($500), nor more than five thousand dollars ($5,000), to be recovered at the suit of the State in the court of common pleas of any county in the State; the attorney general may allow one-half of the penalties herein provided to anyone who may conduct the suit. (Id., sec. 3537; id., sec. 2444; id., 19.)

Sec. 6628. Validity of trust agreements.-All contracts or agreements made in violation of any of the provisions of sections 6626 to 6633 shall be void. (Id., sec. 3538; id., sec. 2445; id., 19.)

Sec. 6629. Attorney general to enforce law. It shall be the duty of the attorney general to enforce the provisions of sections 6626 to 6633 by appropriate actions in courts of competent jurisdiction. (Id., sec. 3539; id., sec. 2446; id., 19.)

Sec. 6630. Duty of secretary of state.-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 sections 6626 to 6633, 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. 3540; id., sec. 2447; id., sec. 19.)

2 Section 6626, prior to the amendment thereof in 1927, did not prohibit discrimination in prices as between different points in the same city but only discrimination in prices as between different cities. State v. Texas Co., 136 S. C. 200, 134 S. E. 211 (1926).