Chap. 362.—An ACT to amend and re-enact Section 2 of Chapter 441 of the Acts
of the General Assembly of 1938, approved April 1, 1938, and known, desig:
nated and cited as the ‘Unfair Sales Act’’, relating to definitions. [H B 427]

Approved March 30, 1940

1. Be it enacted by the General Assembly of Virginia, That
section two of chapter four hundred and forty-one of the Acts of the
General Assembly of Virginia of nineteen hundred and thirty-eight,
approved April first, nineteen hundred and thirty-eight and known,
designated and cited as the “Unfair Sales Act’’, be amended and re-
enacted so as to read as follows:

Section 2. Definitions: When used in this act, emles otherwise
stated and unless the context or subject matter clearly indicates
otherwise:

(a) The term ‘‘merchandise” shall mean any tangible personal
property the subject of commerce.

(b) The term ‘‘cost to the retailer’ shall mean the invoice cost
of the merchandise to the retailer or the replacement cost of the mer-
chandise to the retailer within thirty (30) days prior to the date of
sale; in the quantity last purchased, whichever is lower; less all trade
discounts except customary discounts for cash; to which shall be
added (one) freight charges not otherwise included in the cost of the
merchandise, (two) cartage to retail outlet if done or paid for by the
retailer, which cartage cost shall be deemed to be no more than the
lowest published common carrier rate available for such merchandise
and in the absence of such published rate such cartage cost shall be
deemed to be not less than three-fourths (34) of one per centum of
the cost of the merchandise to the retailer as herein defined, unless
said retailer claims and proves a lower cartage cost, and (three) a
mark-up to cover in part the cost of doing business, which mark-up
in the absence of proof of a lesser cost, shall be not less than six (6)
per centum of the total cost at retail outlet.

(c) The term ‘‘cost to the wholesaler” shall mean the invoice cost
of the merchandise to the wholesaler or the replacement cost of the
merchandise to the wholesaler within thirty (30) days prior to date
of sale, in the quantity last purchased, whichever is lower; less all
trade discounts except customary discounts for cash; to which shall
be added (one) freight charges not otherwise included in the cost of
the merchandise and (two) cartage to the retail outlet if done or paid
for by the wholesaler, which cartage cost shall be deemed to be no
more than the lowest published common carrier rate available for
such merchandise and in the absence of such published rate such
cartage cost shall be deemed to be not less than three fourths (34) of
one per centum of the cost of the merchandise to the wholesaler as
herein defined, unless said wholesaler claims and proves a lower cartage
cost, and (three) a mark-up to cover in part the cost of doing business,
which mark-up, in the absence of proof of a lower cost, shall be not
less than two (2%) per centum of the total cost of the merchandise
at wholesale warehouse or outlet.

(d) Where two or more items are advertised, offered for sale or
sold at a combined price, the price of each item named shall be gov-
erned by the provisions of paragraph (b) or (c) of section two, re-
spectively.

(e) The terms ‘‘cost to the retailer’ and ‘‘cost to the wholesaler’’
as defined in paragraphs (b) and (c) shall mean bona fide costs; and
sales to consumers, retailers and wholesalers at prices which cannot
be justified by existing market conditions within this State shall not
be used as a basis for computing costs, with respect to sales by retailers
and wholesalers.

(f) The terms ‘‘sell at retail’, ‘‘sales at retail’? and “‘retail sale’’
shall mean and include any transfer for a valuable consideration,
made in the ordinary course of trade or in the usual prosecution of the
seller’s business, of title to merchandise to the purchaser for con-
sumption or use other than resale or further processing or manu-
facturing. The above terms shall include any transfer of such property
where title is retained by the seller as security for the payment of
such purchase price.

(zg) The terms “‘sell at wholesale’, ‘‘sales at wholesale’ and
‘wholesale sales’’ shall mean and include any transfer for a valuable
consideration made in the ordinary course of trade or the usual prose-
cution of the seller’s business, of title to merchandise to the purchaser
for purposes of resale or further processing or manufacturing. The
above terms shall include any such transfer of property where title is
retained by the seller as security for the payment of the purchase
price.

(h) The term ‘retailer’? shall mean and include every person,
partnership, corporation or association engaged in the business of
making sales at retail within the State; provided that, in the case of a
person, partnership, corporation or association engaged in the busi-
ness of making sales both at retail and at wholesale such term shall
be applied only to the retail portion of such business.

(i) The term ‘‘wholesaler’’ shall mean and include every person,
partnership, corporation or association engaged in the business of
making sales at wholesale within the State; provided that, in the case
of a person, partnership, corporation or association engaged in the
business of making sales both at wholesale and at retail, such term
shall be applied only to the wholesale portion of such business.

(j) In all cases where both of the functions, ‘‘sales at retail’’ and
“Sales at wholesale’, are performed by the same firm or person, or
where the retailer buys a portion of his supplies direct from the manu-
facturer or producer or any other source, thereby acting as his own
wholesaler, then both the retail and wholesale minimum mark-ups
plus - transportation costs, as herein defined, shall apply to sales at
retail,