State v. Russell, Inc.

I concur on the ground that the scheme had in it the inducement of trade by a gamble. Whether the giving of stamps itself redeemable in money or goods of a fixed amount could be considered an unfair method of competition or merely a rebate and thus a sale for less need not now be considered.

For a time the Federal Trade Commission busied itself in preventing resale price maintenance as a method of unfair competition. The Supreme Court of the United States against four dissents had prescribed the practice of refusing to sell to retailers who cut prices or refused to resell at designated prices. Federal Trade Commission v. Beech Nut Packing Co.,257 U.S. 441, 42 S. Ct. 150, 66 L. Ed. 307, 19 A.L.R. 882. In this case the

"Supreme Court, however, determined that the precedents under the Sherman Act were material only so far as they declare `public policy' and that the essential agreement, combination or conspiracy might be `implied from a course of dealing or other circumstances.'"

McFarland, "Judicial Control of Federal Trade Commission and Interstate Commerce Commission," p. 49. Certainly in the Beech Nut case, supra, and other cases the Supreme Court of the United States took into consideration the declaration of public policy contained in the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7, 15 note, and the decisions which delineated the extent to which traders might go [United States v. Colgate Co.,250 U.S. 300, 39 S. Ct. 465, 63 L. Ed. 992, 7 A.L.R. 443; Dr. Miles MedicalCo. v. John D. Park Sons Co., 220 U.S. 373, 31 S. Ct. 376,55 L. Ed. 502; United States v. A. Schrader's Son, Inc.,252 U.S. 85, 40 S. Ct. 251, 64 L. Ed. 471; Frey Son v. Cudahy PackingCo., 256 U.S. 208, 41 S. Ct. 451, 65 L. Ed. 892.] without infringing that Act, as a basis of determining the permissive powers of the Federal Trade Commission in this field of activity.

But the declarations of the Sherman Anti-Trust Act on public policy covered a field interrelated with that with which the Federal Trade Commission was required to deal, to wit, "unfair methods of competition." In other words conduct which had a "dangerous tendency unduly to hinder competition or to create monopoly" might also fall within the class of acts which independently of the Sherman Act against creating monopolies might be adjudged a "method of unfair competition." While perhaps we may not assume that these United States Supreme Court cases are authority for the proposition that all acts against public policy as they affect trade constitute ipso facto "unfair methods of competition," it is difficult to conceive of a case where some act affecting trade has been declared contrary to public policy and yet would not be included in the term "unfair." In fact it is difficult to conceive of any act whether related to trade or otherwise which if declared as contrary to public policy would not if used by competitors to induce trade be included within the term "unfair." There may be such but we are unable to think of them now.

At all events, when the scheme of selling or advertising involves inducement thru a possible gain based on chance or lottery, I think the method must be dubbed as intrinsically unfair. Perhaps this is fundamentally so because a competitor in order successfully to compete must resort to a like device which would invite a general resort to schemes against public policy. If that be the crux of the unfair method, the main opinion would certainly be correct in tying the basis of the decision to public policy.