Am.  Tour.  Pharm.  | 
August,  19 19.  ' 
Editorial. 
497 
poses  to  maintain,  and  that  the  agency  designated  by  the  Congress 
be  charged  with  the  duty,  either  upon  its  own  initiative  or  upon 
complaint  of  any  dealer  or  consumer  or  other  party  in  interest,  to 
review  the  terms  of  such  contract  and  to  revise  such  prices  and 
that  any  data  and  information  needful  for  a  determination  be  made 
available  to  such  agency. 
"  Such  legislation  would  seem  to  be  in  accord  with  the  spirit  of 
the  times  in  that  it  is  designed,  by  removing  this  perplexity,  to 
promote  the  efficiency  of  manufacturing  and  commercial  institu- 
tions and  so  to  serve  the  interest  of  the  consuming  public. 
The  commission  respectfully  renews  its  recommendation  of  De- 
cember 2,  191 8.  The  conditions  surrounding  the  fixing  and  en- 
forcement of  the  maintenance  of  resale  prices  have  not  materially 
changed  since  this  recommendation  was  made.  The  recent  decision 
of  the  Supreme  Court  in  United  States  v.  Colgate  &  Co.  has  not 
apparently  legalized  contracts  providing  for  the  maintenance  of 
resale  prices,  as  the  court  expressly  stated  that  the  indictment  did 
not  charge  the  existence  of  contracts  in  that  case,  and  distinguished 
it  from  the  case  of  Dr.  Miles  Medical  Co.  v.  Park  &  Sons  on  that 
ground.  If  the  decision  be  construed  to  hold  it  lawful,  under 
the  Sherman  Law,  for  manufacturers  to  fix  resale  prices  and  to 
enforce  the  maintenance  of  such  prices  by  refusal  to  sell  to  those 
who  do  not  resell  at  the  prices  fixed,  or  by  other  means,  it  does 
not  follow  that  the  fixing  and  enforced  maintenance  of  such  prices 
is  not  an  unfair  method  of  competition  within  the  meaning  of 
Section  5  of  the  Trade  Commission  Act.  In  order  to  establish  a 
violation  of  the  Sherman  Anti-Trust  Act  a  contract,  combination 
or  conspiracy  must  be  proven.  If  some  device  for  restraining  trade 
be  devised  which  does  not  fall  within  the  definitions  comprehended 
by  these  three  terms  as  construed  by  the  courts,  it  does  not  con- 
stitute a  violation  of  the  act,  though  restraint  of  trade  may  result. 
"The  enforcement  of  resale  prices  on  goods  in  the  hands  of 
distributors  is  identical  in  its  effect  upon  dealers  and  the  public, 
whether  it  be  accomplished  by  contract,  combination  or  conspiracy, 
or  by  some  other  means.  An  unfair  method  of  competition  within 
the  meaning  of  Section  5  may  involve  the  use  of  contracts  or  the 
formation  of  combinations  or  conspiracy,  but  neither  of  the  three 
is  necessary  to  establish  a  method  of  competition.  Indeed,  unfair 
methods  of  competition  do  not  ordinarily  involve  such  contracts  or 
conspiracies.    The  effect  of  price  maintenance  being  the  same  how- 
