State Price Discrimination Law

The Robinson-Patman Act (RPA) proscribes price discrimination
and other related practices that lessen or injure competition or tend to
create a monopoly. Seeking to adopt these prohibitions, numerous states
have enacted their own price discrimination statutes to achieve the same
or similar results.
States have taken varying approaches in their price discrimination
regimes. Some states have enacted statutes identical to the RPA. Others
have enacted narrower statutes aimed at curbing specific abuses such as
locality discrimination, below-cost sales, and secret rebates. On the
other hand, some state statutes prohibit price discrimination through
broad, stand-alone statutes, including statutes targeted at specific
industries. While these statutes all seek to prevent price discrimination,
their objectives and terms vary significantly, and they cover many
different practices and industries. As a result, sellers should exercise
caution when doing business in different states.
Section A of this chapter discusses those state statutes that are
directly analogous to the RPA in that they contain some, if not all, of the
same prohibitions as their federal counterpart. Section B addresses state
price discrimination statutes that have different aims and applications,
including locality discrimination, below-cost sales, and secret rebates.
Finally, Section C focuses on the broad, stand-alone and industry-
specific statutes that include price discrimination as one of their
components but that do not closely parallel the RPA.
A. Statutory Analogues to the Robinson-Patman Act
Several states have passed statutes that are intended to be direct
analogues to the Robinson-Patman Act.1 These statutes effectively adopt
1. See N.M. STAT. ANN. §§ 57-14-1 to 57-14-9 (West 2009) (New Mexico
Price Discrimination Act); OR. REV. STAT. §§ 646.040 to 646.090 (2009)
(Oregon Anti-Price Discrimination Law); UTAH CODE ANN. §§ 13-5-1 to
104 Price Discrimination Handbook
the language of the RPA by prohibiting price discrimination in the sale of
commodities in addition to identifying other prohibited practices relating
to brokerages, commissions, and the payment for or furnishing of
services and facilities. The statutes also parallel the RPA by holding
individuals liable for inducing price discrimination and providing
statutory defenses to claims, such as a recognized defense that the
discriminatory pricing was the result of a good faith effort to meet
competition in the market.
Several other states have enacted price discrimination statutes that
adopt only certain portions of the federal statute.2 These statutes aim at
the RPA’s central focus of forbidding price discrimination that is
directed at harming competition, injuring competitors, or the formation
of a monopoly. Unlike the federal statute, these state analogues tend to
focus on this single aspect of price discrimination and modify or omit
other provisions covering brokerages, commissions, the furnishing of or
payment for services and facilities, and buyer liability.
The common factor among state statutes in this category is their
focus on discrimination among resellers. They share with the RPA the
objective of maintaining a “level playing field” among resellers who
compete with each other at the same level of commerce. Thus, like the
RPA they restrict an upstream seller (whether a manufacturer or
distributor) from favoring one reselling customer (whether a wholesaler
or a retailer), if such “favoritism” grants to that customer an advantage
over other customers with whom it competes in the sale of the good in
Several of the analogue state statutes explicitly point to federal law
with regard to their interpretation. For example, the Connecticut,
Maryland, Montana, Oklahoma, and Virginia statutes explicitly provide
that consideration and weight are to be given to federal courts’
13-5-18 (West 2008) (Utah Unfair Practices Act); VA. CODE ANN. § 59.1-
9.7 (West 2009) (Virginia Antitrust Act).
2. CONN. GEN. STAT. § 35-45(a)-(b) (analogues to Section 2(a) and 2(b) of
the Act); IDAHO COD E ANN. §§ 48-201 to 48-206 (Idaho Anti-Price
Discrimination Act, contains identical language to Section 2(a) of the
Robinson-Patman Act, analogues to RPA § 2(b)-(f)); MD. CODE ANN.,
COM LAW § 11-204(5) (Maryland Antitrust Act, parallel to § 2(a)-(b), (d),
(e)); MONT. CODE ANN. §§ 30-14-901 to 30-14-904 (2007) (no analogue
to RPA § 2(c)); OKLA. STAT. tit. 79, § 204 (2009) (no direct analogues to
RPA §§ 2(c) through 2(e)); P.R. LAWS ANN. tit. 10, § 263 (2006) (no
analogue to RPA § 2(c)); WIS. STAT. ANN. § 133.04 (2008) (no analogues
to RPA 2(b)-(f)).
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interpretation of the RPA when interpreting their state price
discrimination statutes.3 In addition, courts in New Mexico, Oregon,
Utah, and Wisconsin specifically have looked to federal law to interpret
their price discrimination statutes.4 Federal law and interpretations of it
thus provide useful guidance in states with RPA analogue statutes.
1. Differences in Scope of Statutes
While the analogue statutes are by definition similar to the RPA,
several depart from the scope of the federal statute in a variety of ways.
Sellers in states with analogue statutes should pay careful attention to the
standards imposed by these nuanced statutes and cannot assume that the
standards are the same as those set forth in the RPA.
For example, unlike the RPA, the Maryland, New Mexico, Oregon,
and Virginia laws include services, in addition to commodities, within
their scope of coverage.5 Notably, where Section 2(d) of the RPA has
been construed to apply to advertising and promotional allowances,
Maryland’s counterpart statute also applies to the provisions of services.6
Therefore, it is important for service providers to consider the possible
application of state price discrimination laws to their activities, even
where those laws are otherwise nearly identical to the RPA.
3. CONN. GEN. STAT. § 35-44(b); MD. CODE ANN. § 11-202; MONT. COD E
ANN. § 30-14-903; OKLA. STAT. tit. 79, § 212; VA. CODE ANN. § 59.1-
9.17 (Virginia Antitrust Act shall be construed in harmony with
comparable federal statutory provisions).
4. Jay Walton Enters. v. Rio Grande Oil Co., 738 P.2d 927, 930 (N.M. Ct.
App. 1987) (“Because of the similarities between the Price
Discrimination Act and the Robinson-Patman Act, we look to federal law
for assistance in interpretation and application of the state act.”);
Redmond Ready-Mix v. Coats, 582 P.2d 1340, 1346 (Or. 1978) (federal
decisions interpreting the Robinson-Patman Act were persuasive in
interpreting state anti-discrimination law); Rio Vista Oil, Ltd. v.
Southland Corp., 667 F. Supp. 757, 763 (D. Utah 1987) (Utah antitrust
laws are generally to be construed in harmony with the federal antitrust
scheme); see also Grams v. Boss, 294 N.W.2d 473, 479 (Wis. 1980),
abrogated on other grounds by Olstad v. Microsoft Corp., 700 N.W.2d
139 (Wis. 2005) (finding that the Wisconsin Antitrust Act was enacted to
mimic the federal Sherman Act and that federal decisions interpreting the
act are controlling).
5. MD. CODE ANN., COM. LAW § 11-204(a)(3); N.M. STAT. ANN. § 57-14-2;
OR. REV. STAT. § 646.040; VA. CODE ANN. § 59.1-9.7.
6. MD. CODE ANN., COM. LAW § 11-204(a)(4).

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