Colman, Richard T

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Boston College Law ReviewVolume 2 | Issue 2 Article 144-1-1961Trade RegulationRichard T. ColmanFollow this and additional works at: http://lawdigitalcommons.bc.edu/bclrPart of the Antitrust and Trade Regulation CommonsThis Current Legislation is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has beenaccepted for inclusion in Boston College Law Review by an authorized administrator of Digital Commons @ Boston College Law School. For moreinformation, please contact nick.szydlowski@bc.edu.Recommended CitationRichard T. Colman, Trade Regulation, 2 B.C.L. Rev. 354 (1961), http://lawdigitalcommons.bc.edu/bclr/vol2/iss2/14BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEWA middle ground has found favor in Connecticut, 12 Illinois" and Cali-fornia." These states require that employment advertisements describe, andapplicants be told of, any labor dispute. These statutes are finely detailedas to the sufficiency of such notice. Akin to this solution is that enacted bythe legislatures of Ohio,' 3 Pennsylvania" and Indiana": requiring thatnotice be given to the employee but not necessarily to the public.It is apparent that no plan has been completely satisfactory. With itsregistration law Massachusetts will try the unique.PAUL G. DELANEYTRADE REGULATIONLEGISLATIONThere has been relatively little in the way of actual legislation duringthis period, but publication of the Landis Report' in December, 1960, isdeserving of some comment. A major portion of the report was devoted toproblems common among all the regulatory agencies. 2 It also dealt withspecific agencies, and recommended certain changes aimed at their moreefficient operation. These recommendations should be of particular interestin view of the fact that, in most instances, their adoption would requirelegislative action. Concerning the internal operation of the FTC, the reportcalls for an increase in the powers of the chairman; 3 consolidation of itsinvestigation and litigation activities; and elimination of the "projectattorneys."4 In false and deceptive practice cases, the report recommendsadoption of a more flexible procedure, together with more effective sanctions,particularly the use of an interlocutory cease and desist order. 3 With the fullrealization that ultimate relief must be had from the Congress, the FTCis called upon to formulate some decipherable pattern in its administrativeinterpretation of the Robinson-Patman Act.° In order to eliminate areas ofoverlapping jurisdiction, it is recommended that the antitrust activities ofthe FTC (exclusive of its Robinson-Patman Act jurisdiction) be transferredto the Department of Justice.? The latter has unquestionably proven moreeffective in this field than the FTC because of the Department's broader12 Conn. Gen. Stat. Rev. § 31-121 (1958).13 Ill. Rev. Stat. ch. 48, § 2c (1959).34 Cal. Lab. Code §§ 973-74.13 Ohio Rev. Code Ann. § 4143.12 (Baldwin 1953).16 Pa. Stat. tit. 43, § 557 (1936).17 Ind. Ann. Stat. § 40-712 (1956).1 Landis, Report on Regulatory Agencies To The President-Elect (1960).2 Id. at 1-35 and 65-87.3 Id. at 48.4 Id. at 49.' Id. at 50.6 Id. at 51.7 Id. at 51-52.354CURRENT LEGISLATIONgrant of statutory authority, and its ability to invoke far more powerfulsanctions. In addition, the report calls for the elimination of other lessimportant jurisdictional conflicts by transferring to the FTC the dutiesof the Food and Drug Administration, now in the Department of Health,Education and Welfare,8 and by returning to the FTC full jurisdiction overunfair trade practices in the meat packing industry, some of which is nowin the Department of Agriculture!'The Federal Aviation Act of 1958" had required a mandatory hearingon all applications for approval of a consolidation, merger, acquisition ofcontrol or related transactions involving an air carrier. Section 408(b) 1'has been amended 12 to permit the CAB to eliminate the mandatory hearingin those cases where the public interest does not require it. As a blanketrequirement, the mandatory hearing produced costly delays in many in-stances. It has been retained where the transaction is one affecting controlof a direct air carrier, creating a monopoly or tending to restrain competi-tion. It has been eliminated where the transaction is a relatively simpleone involving none of these factors, and where retention would serve no use-ful purpose, as in the purchase or lease of a limited number of aircraft, orin a transaction affecting only a small airfreight forwarder. 13 Congress hasgranted similar discretion to the ICC 14 and the FCC.' 5The Wisconsin Supreme Court" has reversed a lower court decision"that a Wisconsin statute," prohibiting discrimination in the purchase ofdairy products, must be held unconstitutional on the basis of FairmontCreamery Co. v. Minnesota, 19 in which the U.S. Supreme Court invalidateda Minnesota law of identical substance. The Wisconsin Court concludedthat the Fairmont case has been severely limited, if not repudiated, by sub-sequent decisions of the Supreme Court.The 1958 Virginia Fair Trade Act2° has been held constitutional bythe highest court of that state. 21 The decision rejected every argumentagainst the validity of the act, including the contentions that the law was a8 Ibid.9 Id. at 52.10 72 Stat. 737, 49 U.S.C. §§ 1301-1542 (1958).11 72 Stat. 767,49 U.S.C. § 1378(b) (1958).12 Pub. L. No. 758, 86th Cong., 2d Sess. (Sept. 13, 1960), 74 Stat, 901 (196D).13 H.R. Rep. No. 2171, 86th Cong., 2d Sess. (1960). U.S. Code & Ad. News,Pamphlet No. 16 p. 4769 (Oct. 5, 1960).34 Interstate Commerce Act, 24 Stat. 380 (1887), as amended, 49 U.S.C, § 5 (1958).15 Federal Communications Act of 1934, 48 Stat. 1080 (1934), as amended, 47 U.S.C.§ 221 (1958).10 White House Milk Co. v. Reynolds, 106 N.W.2d 441 (Wis. 1960).17 White House Milk Co. v. Reynolds, No. 170 B, 1960 Trade Cas. 1[ 69,646 (DaneCty. Cir. Ct. 1959).18 Wis. Stat. § 100.22 (1957).19 274 U.S. 1 (1927).20 Va. Code Ann. §§ 59-8.1 to 59-8.9 (Supp. 1960).21 Standard Drug Co. v. General Electric Co., 117 S.E.2d 289 (Va. 1960),355BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEWdelegation of legislative power, and that it authorized price fixing withoutcontractual agreement of any kind, in violation of the Sherman Act. 22In a very recent case, 23 the Montana Fair Trade Act24 has been held toconstitute "price fixing," an activity expressly prohibited by Art. XV § 20of the state constitution.ADMINISTRATIVE REGULATIONSThe FTC's Rules of Practice for Adjudicative Proceedings25 have beenamended26 so as to allow the hearing examiner to defer ruling on a motionto dismiss, made at the end of the complainant's evidence, until the close ofall the evidence. The FTC has announced proposed amendments 27 to thetwelve rules established under authority of the Fur Products Labelling Act. 28Proposed Trade Practice Rules for the Pleasure Boat Industry have also beenannounced by the FTC. 29 If approved, they would include rules coveringrepresentations as to length of a boat, speed claims, maintenance, construc-tion materials and capacity.RICHARD T. COLMANUNIFORM COMMERCIAL CODELEGISLATIVE DEVELOPMENTSThe Uniform Commercial Code has already been enacted in the fol-lowing jurisdictions: Pennsylvania ( 1953 ) , Massachusetts (1957) , Ken-tucky (1958), Connecticut (1959), New Hampshire (1959), Rhode Island(1960), Arkansas (1961), New Mexico (1961) and Wyoming (1961).Further legislative activity concerning the UCC is expected to reach an alltime high in 1961. According to the Uniform Commercial Code Committee,National Conference of Commissioners on Uniform State Laws, the Codehas been or will be introduced in the 1961 session of the legislature in twelveadditional states. These states are: California, 1 Illinois,2 Maine,3 Missouri, 422 26 Stat. 209 (1890), as amended, 15 U.S.C. §§ 1-7 (1958).23 Shaggs Drug Center, Inc. v. Union Carbide and Carbon Corp., No, 10067, 1961Trade Mont. 69,930 (Mont. Sup. Ct. 1961).24 Rev. Codes Ann. §§ 85-201 to 85-208 (1947).25 16 C.F.R. § 3 (1960).26 25 Fed. Reg. 9530 (1960), amending 16 C.F.R. § 3.8(e) (1960).27 25 Fed. Reg. 10554, 10779 (1960), proposed amendment to 16 C.F.R. § 301(1960).28 65 Stat. 179 (1951), 15 U.S.C. § 69f.(b) (1958).29 25 Fed. Reg. 13245 (1960), proposed 16 C.F.R. § 56.1 Code has been introduced and hearings were scheduled for late February. Com-mittees of the State Bar Association and State Bankers Associations have been workingon their final recommendations,2 The Code was introduced in the Illinois Senate by 18 prominent Senators.3 In Maine, the Code was introduced in the legislature on February 7, 1961.4 Very little authoritative information available.356

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