National Dairy Products Corp

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IN THE MATTER OF NATIONAL DAIRY PRODUCTS CORPORATIO:\ ORDER, ETC., IN REGARD TO THE ALLEGED VIOLATION OF SEC. 2 (a) THE CLAYTON ACT Docket 8548. Complaint, Dec. 7, 1962-Decision, Oct. 2, 1969 Order modifying a ce9.se and desist order, dated June 28, 1967 , 71 F. 1333, which prohibited a major food products distributor from discriminating in price among its customers, by limiting the prohibition, pursuant to a decision of the United States Court of Appeals, Seventh Circuit, 412 F. 2d 605, dated June 19 , 1969, to the jam, jelly and preserve products of the respondent company s Kraft Foods Division. ORDER MODIFYING ORDER TO CEASE AND DESIST Respondent having fied in the United States Court of Appeals for the Seventh Circuit a petition to review and set aside the order to cease and desist issued herein on June 28, 1967 (71 C. 1333); and the court on June 19, 1969 (8 S. & D. 948), having issued its opinion modifying and, as modified, affrming and enforcing said order to cease and desist; and the time allowed for filing a petition for certiorari having expired and no such petition having been filed;

Now, therefore, it u; hereby order' ed, That the aforesaid order of the Commission to cease and desist be, and it hereby is, modified in accordance with the said final decree of the court of appeals to read as follows:

It is ordered That respondent N ational Dairy Products Corporation, a corporation, and its offcers, representatives, agents and employees, directly or through any corporate device, in connection with the sale or offering for sale of jam, jeny and preserve prod- NATIONAL DAIRY PRODUCTS CORP. 393 392 Order Modifying Order to Cease and Desist ucts of its Kraft Foods Division, in commerce, as lIcommerce " is defined in the Clayton Act, do forthwith cease and desist from: Discriminating, directly or indirectly, in the price of such products of like grade and quality by sellng such products to any purchaser for resale at a price which is less than the price charged any other purchaser for resale at the sam level of distribution when such lower price is either the result of a reduction from the regular list price of the products or is the result of a promotional offer involving a concession from regular list price: Provided, however That in addition to the defenses set forth in Sections 2 (a) and 2 (b) of the statute it shall be a defense in any enforcement proceeding instituted hereunder for respondent (1) to establish that its lower price was the result of a promotional offer involving a price concession which does not undercut the lowest net price and/or the terms and conditions resulting from a promotional offer made to the purchaser receiving the lower price by any seller of a competitive product within the previous 12 months, or (2) to establish that such lower price does not undercut the lowest price concurrently offered generally throughout the same trading area by any other seller of a competitive product having a substantially smaller annual volume of sales of such products than respondent's annual volume of sales of the product on which the discriminatory price was granted.

It is further ordered That respondent, National Dairy Products Corporation, shall, within thirty (30) days after service upon it of this order, file with the Commission a report, in writing, setting forth in detail the manner and form in which it has complied with the order to cease and desist set forth herein. Complaint 76 F.