16 C.F.R. § 240.2

Applicability of the law

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(a) The substantive provisions of section 2(d) and (e) apply only under certain circumstances. Section 2(d) applies only to:

(1) A seller of products

(2) Engaged in interstate commerce

(3) That either directly or through an intermediary

(4) Pays a customer for promotional services or facilities provided by the customer

(5) In connection with the resale (not the initial sale between the seller and the customer) of the seller's products

(6) Where the customer is in competition with one or more of the seller's other customers also engaged in the resale of the seller's products of like grade and quality.

(b) Section 2(e) applies only to:

(1) A seller of products

(2) Engaged in interstate commerce

(3) That either directly or through an intermediary

(4) Furnishes promotional services or facilities to a customer

(5) In connection with the resale (not the initial sale between the seller and the customer) of the seller's products

(6) Where the customer is in competition with one or more of the seller's other customers also engaged in the resale of the seller's products of like grade and quality.

(c) Additionally, section 5 of the FTC Act may apply to buyers of products for resale or to third parties. See § 240.13 of these Guides.

Notes of Decisions

Cited in 3 cases, 1980–2014 · leading case: Lewis v. Philip Morris Inc., 355 F.3d 515 (6th Cir. 2004).

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Lewis v. Philip Morris Inc., 355 F.3d 515 (6th Cir. 2004). · cites it 2× “Guidelines, 16 C.F.R. § 240.2 (a), (b);22 Hovenkamp ¶2333a.”

Rickles, Inc. v. Frances Denney Corp., 508 F. Supp. 4 (D. Mass. 1980). “- Since the facts alleged by Rickies do not present direct or indirect price discrimination within the scope of § 2(a) of the Act, as a matter of law the complaint fails to state a claim for relief on that basis against the buyers, Jordan Marsh and Bloomingdale’s, under § 2(f).…”

Major Mart, Inc. v. Mitchell Distrib. Co., 46 F. Supp. 3d 639 (S.D. Miss. 2014). “” 16 C.F.R. § 240.2 (b)(2). Courts have interpreted the “in commerce” requirement of the Robinson-Pat-man more narrowly than the Sherman Act.”

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