(a) The prohibited practices described in this section are declared to be unfair trade practices and are prohibited and made unlawful when done with the intent or with the effect of injuring a competitor, of destroying competition or of creating a monopoly.

Terms Used In Tennessee Code 53-3-202

  • Cost to the processor or distributor: means the actual cost of bulk milk and other ingredients, plus the cost of doing business properly allocable to each item covered by the term "milk products" which cost of doing business includes, but is not limited to, labor, employee salaries, rent, maintenance and depreciation on real and personal property, shrinkage, interest, power, supplies, advertising, transportation and delivery costs, credit losses, all permits and license fees, all taxes, insurance and any and all other overhead expenses. See Tennessee Code 53-3-201
  • Cost to the retailer: means the invoice price paid by the retailer for milk products, plus that portion of the retailer's overhead or cost of doing business properly allocable to the milk products, which cost of doing business shall include the same items of expense as are enumerated in the definition of cost to the processor or distributor in subdivision (3). See Tennessee Code 53-3-201
  • Distributor: means any person engaged in the business of selling or offering for sale within the state milk products for consideration, where the property is sold for the purpose of resale or further processing, or is to be used or consumed by the purchaser and not resold or used for the purpose of further processing. See Tennessee Code 53-3-201
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Milk products: means all or any one (1) of the following: market milk, pasteurized milk, vitamin-D milk, homogenized milk, flavored milk or flavored milk drinks, sweet cream, whipping cream, homogenized cream, skim milk, cottage cheese, buttermilk, and cultured buttermilk, as those products are defined by the commissioner under §. See Tennessee Code 53-3-201
  • Person: means and includes one (1) or more individuals, partnerships, associations, incorporated, unincorporated or cooperative, corporations, legal representatives, trustees in bankruptcy, receivers, or any other business unit, or any combination of these, except where the context otherwise requires. See Tennessee Code 53-3-201
  • Processor: means any person engaged in the business of processing or packaging bulk milk and other materials into milk products. See Tennessee Code 53-3-201
  • Retailer: means any person, whether or not a processor or distributor, engaged in the business of selling or offering for sale within the state milk products for a consideration, where the milk products are to be used or consumed by the purchaser and are not to be resold or used for the purpose of manufacture or further processing. See Tennessee Code 53-3-201
  • Sell: includes "offer for sale" "expose for sale" "have in possession for sale" "exchange" "barter" or "trade". See Tennessee Code 53-3-103
  • State: when applied to the different parts of the United States, includes the District of Columbia and the several territories of the United States. See Tennessee Code 1-3-105
(b) No processor or distributor shall do, nor shall any retailer accept the benefit of, any of the following:

(1) Advertise, offer to sell or sell within the state, at wholesale or retail, any milk product for less than cost to the processor or distributor;
(2) Discriminate in price in the sale of any milk product between any of the towns or counties of this state; provided, that different prices that reflect actual transportation cost from point of processing to point of sale, or the actual transportation cost from point of purchase to point of resale, shall not be construed as discriminatory; or
(3) Give or offer to give any retailer or prospective retail customer of a processor or distributor, or of their agents or employees, any free service or any other thing of value, including, but not limited to, the following, which, together with any similar practices, are declared to be unfair trade practices when conducted with the intent of committing any of the acts outlined in this section: advertising allowance; brokerage fees or payments, or sales commissions, a part or all of which are passed on by the ostensible recipient of the fees, payments or commissions to the customer; compensation for jointly used advertising space; advertising displays of any kind, including, but not limited to, newspaper advertising, hand bills, booklets, television or radio advertising, and signs in or outside of the customer’s place of business; furnishing of hosts or hostesses or demonstrators in stores to make sales to the store’s customers; donations directly or indirectly made, whether by way of money, goods, labor or services; free equipment; cleaning and servicing of equipment; or rent on space used by retailer for storing or displaying processor’s or distributor’s merchandise. However, nothing in this subdivision (b)(3) shall be construed as prohibiting the furnishing, free of cost by a processor or distributor to a retailer, at the retailer’s place of business, printed advertising material, such as recipes and informational materials for the promotion of the sale of the processor’s or distributor’s products.
(c) No retailer shall advertise, offer to sell or sell within the state any milk product for less than cost to the retailer.
(d) No person shall advertise, offer to sell or sell any milk product with any other commodity or service at a combined price that is less than the aggregate of the prices for which the milk product and the other commodity or service is separately offered for sale.
(e) In all proceedings brought to enforce this section, proof of consistent or repeated advertisements, offers to sell or sales of milk products at less than cost, as defined in this part, the advertisements, offers to sell and sales forming a pattern of sales below cost, shall be prima facie evidence of the intent to injure competitors and destroy or lessen competition.
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