16 C.F.R. § 240.7

Services or facilities

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The terms “services” and “facilities” have not been exactly defined by the statute or in decisions. One requirement, however, is that the services or facilities be used primarily to promote the resale of the seller's product by the customer. Services or facilities that relate primarily to the original sale are covered by section 2(a). The following list provides some examples—the list is not exhaustive—of promotional services and facilities covered by sections 2(d) and (e):

Cooperative advertising;

Handbills;

Demonstrators and demonstrations;

Catalogues;

Cabinets;

Displays;

Prizes or merchandise for conducting promotional contests;

Special packaging, or package sizes; and

Online advertising.

Example 1:A seller offers a supermarket chain an allowance of $500 per store to stock a new packaged food product and find space for it on the supermarket's shelves and a further allowance of $300 per store for placement of the new product on prime display space, an aisle endcap. The $500 allowance relates primarily to the initial sale of the product to the supermarket chain, and therefore should be assessed under section 2(a) of the Act. In contrast, the $300 allowance for endcap display relates primarily to the resale of the product by the supermarket chain, and therefore should be assessed under section 2(d).Example 2:During the Halloween season, a seller of multi-packs of individually wrapped candy bars offers to provide those multi-packs to retailers in Halloween-themed packaging. The primary purpose of the special packaging is to promote customers' resale of the candy bars. Therefore, the special packaging is a promotional service or facility covered by section 2(d) or 2(e) of the Act.Example 3:A seller of liquid laundry detergent ordinarily packages its detergent in containers having a circular footprint. A customer asks the seller to furnish the detergent to it in special packaging having a square footprint, so that the customer can more efficiently warehouse and transship the detergent. Because the purpose of the special packaging is primarily to promote the original sale of the detergent to the customer and not its resale by the customer, the special packaging is not a promotional service or facility covered by section 2(d) or 2(e) of the Act.

Notes of Decisions

Cited in 8 cases (1 in the last 5 years), 1983–2022 · leading case: Francis George Hinkleman v. Shell Oil Co., 962 F.2d 372 (4th Cir. 1992).

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Francis George Hinkleman v. Shell Oil Co., 962 F.2d 372 (4th Cir. 1992). · cites it 2× “9 For reasons fully stated below, we likewise adopt this interpretation and limit discriminatory “services or facilities” proscribed under section 2(e) of the Robinson-Patman Act to advertising, promotional or merchandising services.”

Woodman's Food Mkt., Inc. v. Clorox Co., 833 F.3d 743 (7th Cir. 2016). “The Guides provide examples of such promotional services or facilities, including, as relevant here, “special packaging, or package sizes.”

Pete Bouldis v. U.S. Suzuki Motor Corp., 711 F.2d 1319 (6th Cir. 1983). “” FTC Guides for Advertising Allowances and other Merchandising Payments and Services, 16 C.F.R. § 240.7 (1982). See 16D Von Kalinowski, supra, at § 35.”

Atl. Futon v. Tempur-Pedic, Inc., 67 Va. Cir. 269 (Charlottesville Cir. Ct. 2005). “16 C.F.R. § 240.7 . “Services or facilities” also include anything that aids in the processing, handling, or resale of a commodity by a purchaser, such as promotional and merchandising aids.”

Major Mart, Inc. v. Mitchell Distrib. Co., 46 F. Supp. 3d 639 (S.D. Miss. 2014). “16 C.F.R. 240.7. Legal scholars also have complained about the drafting of §§ 13(d) and (e).”

Portland 76 Auto/Truck Plaza, Inc. v. Union Oil Co., 153 F.3d 938 (9th Cir. 1998). “” 16 C.F.R. § 240.7 . Here is the entire list of examples: Cooperative- advertising; Handbills; Demonstrators and demonstrations; Catalogues; Cabinets; Displays; Prizes or merchandise for conducting promotional contests; Special packaging, or special package sizes.”

United Magazines Co. v. Murdoch Magazines Distrib., Inc., 353 F. Supp. 2d 433 (S.D.N.Y. 2004). “The final ruling implementing the revised regulation makes clear that the issue of whether an allegedly discriminatory return policy properly is analyzed under section 2(a) or section 2(e) is an open one.”

Dahl Auto. Onalaska Inc. v. Ford Motor Co. (W.D. Wis. 2022). “The court of appeals cited 16 C.F.R. § 240.7 , which interprets § 13(d) as applying to “the services or facilities [that are] used primarily to promote the resale of the seller’s product by the customer.”

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