§ 133.1 Misrepresentation of industry products.

The practice of selling, packing, advertising, or representing tomato paste or related products, or any simulation or imitation thereof, in a manner which is calculated to mislead or deceive or has the tendency and capacity or effect of misleading or deceiving purchasers, prospective purchasers, or the consuming public with respect to the character, nature, content, grade, quality, quantity, origin, substance, material, preparation, or manufacture of such products, or in any other material respect, is an unfair trade practice.

§ 133.2 Specifications for tomato paste. For the purpose of and as used in this part:

(a) Tomato paste (Salsa di Pomodoro, "Salsa") is understood to be the product resulting from the concentration of the screened or strained fleshy and liquid portions of ripe tomatoes, except those portions from skin and core trimmings; with or without the addition of salt, and with or without the addition of basil leaf. The finished product shall contain not less than 22 percent of tomato solids.

(b) Should such minimum of 22 percent tomato solids hereafter be raised to a higher percentage or proportion by applicable provisions of law or by rules or regulations in pursuance thereof, then such higher percentage so fixed shall be considered the minimum under this part, in lieu of such 22 percent specified in paragraph (a) of this section.

(c) Heavy tomato paste ("Concentrato") is understood to be tomato paste containing not less than 33 percent of tomato solids.

(d) It is an unfair trade practice for any member of the industry or other seller to cause the concentration or con

tent of his tomato paste to be misrepresented, or by any other means to represent, directly or indirectly, that the product is of a certain concentration of 22 percent or more tomato solids when such is not true in fact.

§ 133.3 Misrepresentation as to tomato paste.

It is an unfair trade practice to sell, offer for sale, advertise, describe, or otherwise represent directly or indirectly, any product as being tomato paste (Salsa di Pomodoro, "Salsa"), heavy tomato paste ("Concentrato"), or other similar tomato paste product, when such product does not conform to the specifications set forth in § 133.2.

§ 133.4 Misrepresentation as to artificial color.

It is an unfair trade practice to sell, offer for sale, advertise, or otherwise represent, directly or indirectly, any product of the industry containing added artificial color without then and there making full and nondeceptive disclosure of the presence of such added artificial color.

The use of any coloring matter whatsoever shall not be permitted when the same is introduced for the purpose or with the effect of concealing or masking damage or inferiority, or of adulterating the product or rendering the same deleterious.

§ 133.5 Misrepresentation as to tomato content of product.

It is an unfair trade practice to sell, offer for sale, advertise, describe, or otherwise represent, directly or indirectly, any product of the industry as containing a higher tomato solids content than is actually the case.

§ 133.6 Deceptive depictions.

The use of photographs, cuts, engravings, illustrations, or pictorial or other depictions, or devices, of industry products, in catalogues, sales literature, advertisements, or other representations, in such manner as to have a capacity and tendency or effect of misleading or deceiving the purchasing or consuming public as to the origin, manufacture, grade, quality, quantity, size, composition, material, coloring, or content of any products of the industry, or ingredient thereof, or in any other material respect, is an unfair trade practice.

§ 133.7 Defamation of competitors and disparagement of their products.

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, quality, or manufacture of the products of competitors, or of their business methods, selling prices, values, credit terms, policies, or services, is an unfair trade practice.

§ 133.8 Substituting inferior products for those ordered.

The practice of using or substituting any product of the industry inferior in grade or quality to that specified by the purchaser, without the consent of said purchaser to such use or substitution, or with the tendency, capacity, or effect of otherwise misleading or deceiving purchasers, prospective purchasers, or the consuming public, is an unfair trade practice.

§ 133.9 Commercial bribery.

Directly or indirectly to give, or permit to be given, or offer to give, money or anything of value to agents, employees, representatives of customers or prospective customers, or to agents, employees, or representatives of competitors' customers, without the knowledge of their employers or principals, as an inducement to influence their employers or principals to purchase or contract to purchase industry products from the maker of such gift or offer, or to influence such employers or principals to refrain from dealing or contracting to deal with competitors, is an unfair trade practice. § 133.10 Inducing breach of contract. Knowingly inducing or attempting to induct the breach of existing lawful contracts between competitors and their customers or their suppliers by any false or deceptive means whatsoever, or knowingly interfering with or obstructing the performance of any such contractual duties or services of any such means, with the purpose and effect of unduly hampering, injuring, or prejudicing competitors in their businesses, is an unfair trade practice.

§ 133.11 Enticing away employees of competitors.

Willfully enticing away the employees of competitors with the purpose and

effect of unduly hampering, injuring, or prejudicing competitors in their businesses, is an unfair trade practice.

§ 133.12 Selling below cost.

The practice of selling industry products below the seller's cost with the intent and with the effect of injuring a competitor and where the effect may be substantially to lessen competition or tend to create a monopoly or unreasonably restrain trade is an unfair trade practice; all elements recognized by good accounting practice as proper elements of such cost shall be included in determining cost under this section.

(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 purchasers 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 with any place under the jurisdiction of the United States;

(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

1 Paragraph (a) of § 133.13 shall not be construed as embracing practices prohibited by paragraphs (b), (c), and (d) of this section.

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 changes 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 or 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 proc

essing, 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) Illegal price discrimination. It is an unfair trade practice for any member of the industry or other person engaged in commerce, in the course of such commerce, to discriminate in price in any other respect contrary to section 2 of the Clayton Act as amended by the act of Congress approved June 19, 1936 (49 Stat. 1526-8; 15 U. S. C. 13-13b, 21a), or knowingly to induce or receive a discrimination in price which is prohibited by such section as amended.

(Sec. 2, 38 Stat. 730, as amended, secs. 2, 8, 4, 49 Stat. 1527, 1528; 15 U. S. C. 13, 18a, 13b, 218)

§ 133.14 Misrepresentation as to basil,

etc.

It is an unfair trade practice to cause any tomato paste or related product to be represented, directly or indirectly, as containing basil leaf or any other ingredient when such is not true in fact; or when such basil leaf or other specified ingredient has been omitted in packing from various or sundry cans of the product so represented.

GROUP II

§ 133.101 Disclosure of solids content.

The practice, by each member of the industry, of making clear and nondeceptive disclosure to the purchasing public of the percentage or proportion of tomato solids present in his product, thereby disclosing whether his tomato paste contains only the minimum percentage of tomato solids or some higher percentage, is recommended as a proper and desirable practice to follow in the interest of affording consumers and other purchasers correct information as to the concentration of the product, and of avoiding confusion, deception and misrepresentation in respect thereto.

§ 133.102 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.

§ 133.103

Fake or fictitious bids.

The industry 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.

§ 133.104 Truthful disclosure of quality of products.

In the interest of consumer protection, the industry records itself as favoring, and recommends, the practice of members making fair and truthful disclosure, in their advertising, labeling, sales literature, and other selling representations, of the quality and content of their products.

SOURCE: The provisions of this Part 134 appear at 3 F.R. 2323, Sept. 28, 1938, unless otherwise noted.

GROUP I

§ 134.1 Misrepresentation of industry products.

It is an unfair trade practice to make or publish, or cause to be made or published, directly or indirectly, any false, misleading or deceptive statement or representation, by way of advertisement or otherwise, concerning the grade, quality, quantity, use, material, content, origin, nutritive value, preparation, manufacture, or distribution of oleomargarine, or in any other material respect. § 134.2 Misbranding.

The false or deceptive marking or branding of oleomargarine with any word, phrase, name, trade-mark, label, picture, design, device, or other representation, with respect to the grade, quality, quantity, use, content, origin, preparation, manufacture, or distribution of such oleomargarine, or, in any other material respect, is an unfair trade practice. § 134.3 Substitution of products not conforming to specifications.

The substitution and delivery to customers, without the consent of the purchaser, of oleomargarine which does not conform to formula specifications, samples, or representations upon which the purchase order is based; or the substitution or delivery, with or without the consent of the purchaser, of oleomargarine which does not conform to applicable Federal or State laws or regulations; with the purpose or with the tendency and capacity or effect of misleading, the purchasing or consuming public, is an unfair trade practice.

§ 134.5 Misrepresentation as to fat con

tent.

It is an unfair trade practice for any member of the industry to sell, or offer for sale through advertising or otherwise, any oleomargarine the fat content of which is less than that specified in applicable regulations, duly promulgated by authority of law, for the purpose, or with the tendency, capacity or effect of misleading or deceiving purchasers, prospective purchasers, or the consuming public.

§ 134.6 Compliance with State and Federal specification requirements.

It is an unfair trade practice to sell or distribute, or cause to be sold or distributed, any oleomargarine manufactured in conformity with formula specifications of buyers or customers or otherwise, when such formula specifications or manufacture is violative of applicable Federal or State laws or regulations and where the tendency and capacity or the effect thereof is, directly or indirectly, to mislead or deceive the purchasing or consuming public.

§ 134.7 Commercial bribery.

It is an unfair trade practice for a member of the industry directly or indirectly to give or offer to give, or permit or cause to be given, money or anything of value to agents, employees, or representatives of customers or prospective customers, or to agents, employees, or representatives of competitors' customers or prospective customers, without the knowledge of their employers or principals, as an inducement to influence their employers or principals to purchase or contract to purchase products manufactured or sold by such industry member or the maker of such gift or offer, or to influence such employers or principals to refrain from dealing in the products of competitors, or from dealing or contracting to deal with competitors.

from whomsoever he chooses or to sell his product to whomsoever he chooses.

§ 134.9 Defamation of competitors and disparagement of their products.

The defamation of a competitor by falsely imputing to him dishonorable conduct, inability to perform contracts, questionable credit standing, or by other false representations, or the false disparagement of the grade, quality, or manufacture of the products of a competitor or of his business methods, selling prices, credit terms, policies, or services, is an unfair trade practice.

§ 134.10 False invoicing.

Withholding from or inserting in an invoice, billing or statement any material information by reason of which omission or insertion, a false record is made, wholly or in part, of the transaction which such invoice or billing or statement purports to represent, with the purpose or effect of thereby misleading or deceiving purchasers, prospective purchasers, or the consuming public, is an unfair trade practice.

§ 134.11 Inducing breach of contract.

Inducing or attempting to induce the breach of existing lawful contracts between competitors and their customers or their suppliers, or between a competitor and his distributor or agent, 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 prejudicing competitors in their businesses, is an unfair trade practice.

§ 134.12 Enticing away employees of competitors.

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

§ 134.13 Consignment selling.

It is an unfair trade practice for any member of the industry to use the practice of shipping goods on consignment or pretended consignment for the purpose and with the effect of artificially clogging trade outlets and unduly restricting competitors' use of said trade outlets in