A New Approach to Resale Price Maintenance

Resale price maintenance has had a lively legal history. After court decisions under the Sherman Act and the Federal Trade Commission Act had discouraged it in the first third of the current century,' it was encouraged by Fair Trade Acts in so many states as to develop an impractical cleavage between state and federal law. Congress responded by passing the Miller-Tidings Act in 1937. This made the relevant antitrust laws inapplicable to resale price maintenance contracts valid by the law of the state where resale is to be made.

The amendment conformed in essential respects to the structure of the Fair Trade Acts, in relating only to merchandise identified by trademark or trade name "in free and open competition with commodities produced or distributed by others," and in denying validity to horizontal agreements between manufacturers or between distributors.