1.
§ 2 Clayton Act, 15 U.S.C. §§ 13(2)
Discrimination in price, services, or facilities
(a) Price; selection of customers
It shall be unlawful for any person engaged in
commerce, in the course of such commerce, either directly or indirectly, to
discriminate in price between different purchasers of commodities of like grade
and quality, where either or any of the purchases involved in such
discrimination are in commerce, where such commodities are sold for use,
consumption, or resale within the United States or any Territory thereof or the
District of Columbia or any insular possession or other place under the
jurisdiction of the United States, and where the effect of such discrimination
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, That nothing herein contained 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:
Provided, however, That the Federal Trade Commission may, after due
investigation and hearing to all interested parties, fix and establish quantity
limits, and revise the same as it finds necessary, as to particular commodities
or classes of commodities, where it finds that available purchasers in greater
quantities are so few as to render differentials on account thereof unjustly
discriminatory or promotive of monopoly in any line of commerce; and the
foregoing shall then not be construed to permit differentials based on
differences in quantities greater than those so fixed and established: And
provided further, That nothing herein contained 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: And provided
further, That nothing herein contained shall prevent price changes from time to
time where in response to changing conditions affecting the market for or the
marketability of the goods concerned, 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) Burden of rebutting prima-facie case of
discrimination
Upon proof being made, at any hearing on a
complaint under this section, that there has been discrimination in price or
services or facilities furnished, the burden of rebutting the prima-facie case
thus made by showing justification shall be upon the person charged with a
violation of this section, and unless justification shall be affirmatively
shown, the Commission is authorized to issue an order terminating the discrimination:
Provided, however, That nothing herein contained shall prevent a seller
rebutting the prima-facie case thus made by showing that his lower price or the
furnishing of services or facilities to any purchaser or purchasers was made in
good faith to meet an equally low price of a competitor, or the services or
facilities furnished by a competitor.
(c) Payment or acceptance of commission,
brokerage, or other compensation
It shall be unlawful for any person 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.
(d) Payment for services or facilities for
processing or sale
It shall be unlawful for any person engaged in
commerce to pay or contract for the payment of anything of value to or for the
benefit of a customer of such person 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 person, unless such payment or consideration is available on
proportionally equal terms to all other customers competing in the distribution
of such products or commodities.
(e) Furnishing services or facilities for
processing, handling, etc.
It shall be unlawful for any person 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 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.
(f) Knowingly inducing or receiving
discriminatory price
It shall be unlawful for any person engaged in
commerce, in the course of such commerce, knowingly to induce or receive a
discrimination in price which is prohibited by this section.
Discrimination in rebates, discounts, or
advertising service charges; underselling in particular localities; penalties,
15 U.S.C. § 13a
It shall be unlawful for any person engaged in
commerce, in the course of such commerce, to be a party to, or assist in, any
transaction of sale, or contract to sell, which discriminates to his knowledge
against competitors of the purchaser, in that, any discount, rebate, allowance,
or advertising service charge is granted to the purchaser over and above any
discount, rebate, allowance, or advertising service charge available at the
time of such transaction to said competitors in respect of a sale of goods of
like grade, quality, and quantity; to sell, or contract to sell, goods in any
part of the United States at prices lower than those exacted by said person
elsewhere in the United States for the purpose of destroying competition, or
eliminating a competitor in such part of the United States; or, to sell, or
contract to sell, goods at unreasonably low prices for the purpose of
destroying competition or eliminating a competitor.
Any person violating any of the provisions of this
section shall, upon conviction thereof, be fined not more than $5,000 or
imprisoned not more than one year, or both.
Cooperative association; return of net earnings
or surplus, 15 U.S.C. § 13b
Nothing in sections 13 to 13b and 21a of this title
shall prevent a cooperative association from returning to its members,
producers, or consumers the whole, or any part of, the net earnings or surplus
resulting from its trading operations, in proportion to their purchases or
sales from, to, or through the association.
Exemption of non-profit institutions from price
discrimination provisions, 15 U.S.C. § 13c
Nothing in sections 13 to 13b and 21a of this
title, shall 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.