CHAPTER 588

AN ACT to amend and reenact §§ 59-10, 59-11, 59-12, 59-18,
59-14, 59-15, 59-16, 59-17, 59-18 and 59-19 of the Code of
1950, relating to unfair sales, relief therefrom, and
ties therefor, and to amend the Code of 1950 by adding «
section numbered 59-19.1, so as to provide a penalty for any
violation of the Unfair Sales Act.
[ H 522 ]

Approved April 11, 1950

Be it enacted by the General Assembly of Virginia:

1. That §§ 59-10, 59-11, 59-12, 59-13, 59-14, 59-15, 59-16,
59-17, 59-18 and 59-19 of the Code of 1950 be amended and
reenacted, and that the Code of 1950 be amended by adding a
section numbered 59-19.1 as follows:

§ 59-10. Definitions—When used in this chapter, unless
otherwise stated and unless the context or subject matter clearly
indicates otherwise:

(1) “Merchandise” shall mean any tangible personal prop-
erty the subject of commerce.

(2) “Cost to the retailer’ shall mean the invoice cost of
the merchandise to the retailer or the replacement cost of the
merchandise to the retailer within thirty 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 (a) freight charges not otherwise included
in the cost of the merchandise, (b) 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 of one per centum of the cost of the mer-
chandise to the retailer as herein defined, unless the retailer
claims and proves a lower cartage cost, and (c) a markup to
cover in part the cost of doing business, which markup in the
absence of proof of a lesser cost, shall be not less than six per
centum of the total cost at retail outlet.

(3) “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 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 (a) freight charges not otherwise included
in the cost of the merchandise, (b) 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 of one per centum of the cost of the merchan-
dise to the wholesaler as herein defined, unless said wholesaler
claims and proves a lower cartage cost, and (c) a markup to
cover in part the cost of doing business, which markup, in the
absence of proof of a lower cost, shall be not less than two per
centum of the total cost of the merchandise at wholesale ware-
house or outlet.

(4) “Cost to the retailer” and ’’cost to the wholesaler” as
defined in subsections (2) and (3) shall mean bona fide costs. *

(5) “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 prosecu-
tion of the seller’s business of title to merchandise to the pur-
chaser for consumption or use other than resale or further pro-
cessing or manufacturing. 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.

(6) “Sell at wholesale’, “Sales at wholesale’ and “whole-
sale sales’? shall mean and include any transfer for a valuable
consideration made in the ordinary course of trade or the usual
prosecution 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.

(7) “Retailer” shall mean and include every person, part-
nership, 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 business of making sales both at retail and at wholesale
such term shall be applied only to the retail portion of such
business.

(8) “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.

§ 59-11. Items advertised or sold at combined price.—
When two or more items are advertised, offered for sale or sold
at a combined price, the price of each such item named shall be
governed by the provisions of subsections (2) and (3) of the
preceding section, respectively.

§ 59-12. “Sales at retail’ and ‘Sales at wholesale” by
same person.—In each case 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 sup-
plies direct from the manufacturer or producer or any other
source, thereby acting as his own wholesaler, then both the retail
and wholesale minimum markups plus all transportation costs,
as defined in § 59-10 of the Code of 1950 as now or hereafter
amended, shall apply to sales at retail.

§ 59-13. Unfair method of competition; evidence of viola-
tion.—It is hereby declared that advertisement, offer to sell, or
sale of any merchandise, either by retailers or wholesalers, at
less than cost as defined in this chapter, with the intent * of *
diverting trade from * a competitor, or with the * intent of de-
ceiving any purchaser or prospective purchaser, substantially
lessening competition, unreasonably restraining trade, or tending
to create a monopoly in any line of commerce, is an unfair
method of competition, contrary to public policy, and in contra-
vention of the policy of this chapter.

In any action brought pursuant to this chapter, whether
civil or criminal, proof of advertisement, offering to sell or sale
of any merchandise at less than cost as defined in this chapter
shall be prima facie evidence of intent to divert trade from a
competitor, to substantially lessen competition, and to unrea-
sonably restrain trade.

§ 59-14. Violation a misdemeanor. * —Any retailer who
shall, in contravention of the policy of this chapter, advertise,
offer to sell or sell at retail any item of merchandise at less than
cost to the retailer as defined in this chapter; or any wholesaler
who shall, in contravention of the policy of this chapter, adver-
tise, offer to sell, or sell at wholesale any item of merchandise at
less than cost to the wholesaler as defined in this chapter, shall
be guilty of a misdemeanor. *

§ 59-15. Injunctive Relief.—In addition to the penalties
provided in this chapter, the courts of record of this State are
hereby invested with jurisdiction to prevent and restrain viola-
tions or threatened violations of this chapter. Any person shall
be entitled to sue for and have injunctive relief in any court of
competent jurisdiction against any threatened loss or injury
by reason of a violation of this chapter without being compelled
to allege or prove that an adequate remedy at law does not
exist. If in such action a violation or threatened violation of
this chapter shall be established, the court shall enjoin and re-
strain, or otherwise prohibit, such violation or threatened viola-
tion, and, in addition thereto, the court shall assess in favor of
the plaintiff and against the defendant the costs of such proceed-
ing.

In such action it shall not be necessary that actual damages
to the plaintiff be alleged or proved, but where alleged and
proved, the plaintiff in such action, in addition to such injunc-
tive relief and costs of such suit shall be entitled to recover from
the defendant the actual damages sustained by him.

§ 59-16. -Attorney General may investigate complaint of
violation.—Upon complaint of any violation of this chapter made
to the Attorney General by any individual wholesaler or retailer
or by any association of wholesalers or retailers, incorporated
under the laws of the State and recognized by him as fairly rep-
resentative of the wholesale and retail merchants of the State
interested in such complaint, he may investigate such complaint
or cause such complaint to be investigated, provided the expense
and cost of such investigation * are borne by the complainant.

§ 59-17. Report of investigation to Commonwealth’s at-
torney; proceedings against violator.—If it appears from such
investigation * that any provision of this chapter has been vio-
lated, the Attorney General may report the result of the investi-
gation to the Attorney for the Commonwealth of the proper
county or corporation, who may institute and conduct in the ap-
propriate court such proceedings against the violator as such
attorney for the Commonwealth may deem proper. * The Attor-
mey General may institute and conduct or cause to be instituted
and conducted a suit in the name of the Commonwealth to pre-
vent and restrain violations of this chapter, provided that all
costs and expenses of any such proceedings, not properly taxable
against the violator, shall be borne by the complainant at whose
instance any such proceedings may be instituted.

§ 59-18. Publication and circulation of provisions of chav
ter.—The Attorney General in his discretion may also, at the
instance of any such association of wholesalers or retailers, and
with the view to avoid or reduce violations of this chapter and
these sections, cause to be published and circulated in such man-
ner and to such extent as he may deem proper, the provisions
of this chapter and his interpretation and construction thereof,
provided the cost thereof is paid by the association requesting
such publication and circulation.

§ 59-19. Exemptions from chapter.—The provisions of
this chapter shall not apply to sales at retail or sales at whole-
sale:

(1) Where merchandise is sold at bona fide clearance sales,
if advertised, marked and sold as such;

(2) Where the merchandise is fresh fruits or fresh vege-
tables or farm products when the sales are made by the pro-
ducers thereof, or where perishable merchandise must be sold
promptly in order to prevent loss ; ;

(3) Where merchandise is imperfect or damaged, or is
being discontinued and is advertised, marked and sold as such;

ere merchandise is sold upon the final liquidation
of any business;

(5) Where merchandise is sold for charitable purposes or
to relief agencies;

(6) Where merchandise is sold on contract to departments
of governments or governmental institutions;
(7) Where the price of merchandise is made in good faith
to meet lawful competition ;

(8) Where sales are made by one wholesaler to another
wholesaler or by one retailer to another retailer for the purposes
of accommodation ;

(9) Where merchandise is sold by any officer acting under
the order or direction of any court or by any fiduciary, or by
any trustee in a deed of trust or deed of assignment for the bene-
fit of creditors.

Nothing in this chapter shall be construed to apply to fer-
tilizer companies or their agents or persons or companies buying
goods from fertilizer companies for the purpose of selling at
retail.

§ 59-19.1. Revocation of license for violations in sale of
cigarettes.— The State Tax Commissioner may, upon notice and
after hearing, suspend or revokc the licenses of any wholesuler
of tobacco or groceries or péddler of tobacco for any violation
of this chapter in respect to the sale of cigarettes or groceries.

Any person aggrieved by such decision, order or finding of
the State Tax Commissioner may appeal therefrom to the circuit
or corporation court of the county or city in which he resides
or has his principal place of: business.