Appellee is the largest drug wholesaler in the United States,
and sells to retailers in many states. It also manufactures its own
line of brand-name drugs, which it sells to retailers and to
independent wholesalers in many states. It refused to sell its
brand products to independent wholesalers which had not entered
into agreements that, in wholesaling appellee's products, they
would adhere to the wholesale prices fixed by appellee. As a
result, many independent wholesalers which were in direct
competition with appellee's wholesaling operations signed such
such price-fixing agreements were not exempted
from the prohibitions of § 1 of the Sherman Act by the "fair-trade"
provisions of the Miller-Tydings Act or the McGuire Act. Pp.
351 U. S.
(a) Such price-fixing agreements are illegal per se
under § 1 of the Sherman Act unless they are within the exemptions
of the Miller-Tydings Act or the McGuire Act. Pp. 351 U. S.
(b) The exemptions of the Miller-Tydings Act and the McGuire Act
are expressly made inapplicable to agreements "between wholesalers"
or "between persons, firms, or corporations in competition with
each other," and these words must be taken in their normal and
customary meaning. Pp. 351 U. S.
(c) Appellee is admittedly a "wholesaler" with resale price
maintenance contracts with many other "wholesalers" who are in
competition with it, and it cannot be brought within the exemptions
of the Miller-Tydings Act or the McGuire Act by resort to a fiction
that it acts only as a manufacturer when it concludes such
agreements with competing wholesalers. P. 351 U. S.
(d) Even if appellee were not properly considered a
"wholesaler," it would not be within the exemptions of the
Miller-Tydings Act or the McGuire Act, because the price-fixing
agreements here involved are "between persons, firms, or
corporations in competition with each other" within the meaning of
those Acts. Pp. 351 U. S.
(e) This restrictive language is unambiguous, and a different
result is not required by the legislative history of the McGuire
Act. Pp. 351 U. S.
Page 351 U. S. 306
(f) These limitations must be construed strictly, since resale
price maintenance is a privilege restrictive of a free economy. Pp.
351 U. S.
Reversed and remanded.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
This is a direct appeal by the Government under the Expediting
Act, 32 Stat. 823, 15 U.S.C. § 29, as amended by 62 Stat. 869, from
a decision of the District Court for the Southern District of New
York, interpreting the scope of the exemption from the antitrust
laws provided by "fair trade" legislation.
Appellee, a Maryland corporation with its home office in New
York, is the largest drug wholesaler in the United States.
Operating through 74 wholesale divisions located in 35 states, it
sells drugstore merchandise of various brands to retailers,
principally drugstores, substantially throughout the nation. For
the fiscal year ended March 31, 1954, its sales of all drug
products amounted to $338,000,000.
Appellee is also a manufacturer of its own line of drug
products, the total sales of which amounted to $11,000,000 for the
year ended March 31, 1954. Its manufacturing operation is conducted
through a single manufacturing division, McKesson Laboratories,
located at Bridgeport, Connecticut. This division, like each of
appellee's wholesale divisions, has a separate headquarters and a
separate staff of employees, but none of the 75 divisions is
Page 351 U. S. 307
separately incorporated. All are component parts of the same
corporation, and are responsible to the corporation's president and
board of directors.
Appellee distributes its own brand products to retailers through
two channels: (1) directly to retailers, and (2) through
independent wholesalers. The major portion of its brand products is
distributed to retailers through its own wholesale divisions.
Appellee also makes direct sales to important retailers through its
manufacturing division. Most of appellee's sales to independent
wholesalers are made by its manufacturing division, but its
wholesale divisions sold approximately $200,000 of McKesson brand
products to other wholesalers during the fiscal year ended June 30,
To the extent possible under state law, appellee requires all
retailers of its brand products to sell them at "fair trade" retail
prices fixed by appellee. These prices are set forth in published
schedules of wholesale and retail prices.
Appellee also has "fair trade" agreements with 21 independent
wholesalers who buy from its manufacturing division. Sixteen of
these independents compete with appellee's wholesale divisions. The
other 5 compete with the manufacturing division for sales to chain
drugstores located in their trading areas. On June 6, 1951, in
accordance with appellee's "fair trade" policy, a vice president in
charge of merchandising notified appellee's wholesale divisions
"None of our wholesale divisions will sell any McKesson labeled
products to any wholesaler who has not entered into a fair trade
contract with McKesson Laboratories."
As a result, 73 of the independent wholesalers who had been
dealing with McKesson wholesale divisions entered
Page 351 U. S. 308
into "fair trade" agreements with McKesson by which they bound
themselves in reselling its brand products to adhere to the
wholesale prices fixed by it. Each of these independent wholesalers
is in direct competition with the McKesson wholesale division from
which it buys.
The Government, under Section 4 of the Sherman Act, [Footnote 1
] brought this civil action
for injunctive relief against appellee in the District Court. The
complaint charged that appellee's "fair trade" agreements with
independent wholesalers with whom it was in competition constituted
illegal price fixing in violation of Section 1 of the Act. Appellee
admitted the contracts, but claimed that they were exempted from
the Sherman Act by the Miller-Tydings Act [Footnote 2
] and the McGuire Act. [Footnote 3
The Government moved for summary judgment on the ground that
these Acts do not immunize McKesson's agreements with other
wholesalers, since they expressly exclude from their exemption from
the antitrust laws contracts "between wholesalers" or "between
persons, firms, or corporations in competition with each other."
The district judge denied the motion. [Footnote 4
] He recognized that price fixing is illegal
under the Sherman Act, but announced that, in "fair
trade" cases, "[n]o inflexible standard should be laid down to
govern in advance." He was "unwilling at this stage of case law
development of legislatively sanctioned resale price fixing" to
apply the per se
rule "in fair trade situations absent a
factual showing of illegality." Such a showing, he said, could not
be made "simply by pointing to some restraint of competition." The
"true test of legality" of "fair trade" agreements between a
producer-wholesaler and independent
Page 351 U. S. 309
wholesalers, the court held, "is whether some additional
restraint destructive of competition is occasioned." [Footnote 5
The case then proceeded to trial before another district judge,
who concurred in the "ruling that fair trade price fixing by a
producer-wholesaler was not per se
illegal under the
Sherman Act," and held that the Government's evidence did not
establish an "additional restraint" within the meaning of the test
previously enunciated in the case. [Footnote 6
] He ordered the complaint dismissed, and the
Government took a direct appeal under the Expediting Act. We noted
probable jurisdiction. [Footnote
The issue presented is a narrow one of statutory interpretation.
The Government does not question the so-called vertical "fair
trade" agreements between McKesson and retailers of McKesson brand
products. It challenges only appellee's price-fixing agreements
with independent wholesalers with whom it is in competition.
Section 1 of the Sherman Act provides:
"Every contract, combination in the form of trust or otherwise,
or conspiracy, in restraint of trade or commerce among the several
States, or with foreign nations, is hereby declared to be illegal.
. . . [Footnote 8
It has been held too often to require elaboration now that price
fixing is contrary to the policy of competition underlying the
Sherman Act, and that its illegality does
Page 351 U. S. 310
not depend on a showing of its unreasonableness, since it is
conclusively presumed to be unreasonable. [Footnote 9
] It makes no difference whether the motives
of the participants are good or evil; whether the price fixing is
accomplished by express contract or by some more subtle means;
whether the participants possess market control; whether the amount
of interstate commerce affected is large or small; or whether the
effect of the agreement is to raise or to decrease prices.
In United States v. Socony-Vacuum Oil Co., 310 U.
, in holding price-fixing agreements to be illegal
this Court said:
"Congress has not left with us the determination of whether or
not particular price-fixing schemes are wise or unwise, healthy or
destructive. . . . [T]he Sherman Act, so far as price-fixing
agreements are concerned, establishes one uniform rule applicable
to all industries alike. [Footnote 11
And it has been said by this Court:
"A distributor of a trademarked article may not lawfully limit
by agreement, express or implied, the price at which or the persons
to whom its purchaser may resell, except as the seller moves along
the route which is marked by the Miller-Tydings Act. [Footnote 12
The question before us is whether the price-fixing agreements
challenged herein move along that route. If they do not, they are
illegal per se.
There is no basis for supposing that
Congress, in enacting the Miller-Tydings and McGuire Acts, intended
any change in the traditional
Page 351 U. S. 311
doctrine. The District Court was plainly in
error in attempting to create a category of agreements which are
outside the exemption of those Acts but which should nevertheless
be spared from application of the per se
In the Miller-Tydings Act, passed as a rider to a District of
Columbia revenue bill, Congress was careful to state that its
exemption of certain resale price maintenance contracts from the
prohibitions of the antitrust laws
"shall not make lawful any contract or agreement, providing for
the establishment or maintenance of minimum resale prices on any
commodity herein involved, between manufacturers, or between
producers, or between wholesalers, or between brokers, or between
factors, or between retailers, or between persons, firms, or
corporations in competition with each other.
Fifteen years later, Congress attached an almost identical
proviso to the McGuire Act. [Footnote 14
] We are to take the
Page 351 U. S. 312
words of these statutes "in their normal and customary meaning."
Schwegmann Bros. v. Calvert Corp., 341 U.
, 341 U. S.
Appellee is admittedly a wholesaler with resale price
maintenance contracts with 94 other wholesalers who are in
competition with it. Thus, even if we read the proviso so that the
words "in competition with each other" modify "between
wholesalers," the agreements in question would seem clearly to be
outside the statutory exemption. Appellee concedes that the proviso
does not exempt a contract between two competing independent
wholesalers fixing the price of a brand product produced by neither
of them. [Footnote 15
it urges that what would be illegal if done between competing
independent wholesalers becomes legal if done between an
independent wholesaler and a competing wholesaler who is also the
manufacturer of the brand product. This is so, appellee maintains,
because, in contracting with independent wholesalers, it acted
solely as a manufacturer selling to buyers, rather than as a
competitor of these buyers. But the statutes provide no basis for
sanctioning the fiction of McKesson, the country's largest drug
wholesaler, acting only as a manufacturer when it concludes "fair
trade" agreements with competing wholesalers. These were agreements
Any doubts which might otherwise be raised as to the propriety
of considering a manufacturer-wholesaler as a
Page 351 U. S. 313
"wholesaler" are dispelled by the last phrase of the proviso in
question, which continues the proscription against price-fixing
agreements "between persons, firms, or corporations in competition
with each other." Congress thus made as plain as words can make it
that, without regard to categories or labels, the crucial inquiry
is whether the contracting parties compete with each other. If they
do, the Miller-Tydings and McGuire Acts do not permit them to fix
resale prices. The Court stated in Schwegmann Bros. v. Calvert
Corp., 341 U. S. 384
341 U. S. 389
that this proviso
"expressly continues the prohibitions of the Sherman Act against
'horizontal' price fixing by those in competition with each other
at the same functional level. [Footnote 16
Since appellee competes "at the same functional level" with each
of the 94 wholesalers with whom it has price-fixing agreements, the
proviso prevents these agreements from falling within the statutory
Appellee argues that a brief colloquy on the Senate floor
between a supporter of the McGuire Act and an inquiring Senator
Shortly before the Act was passed should dictate a meaning contrary
to that revealed by the Act's plain language. But, at best, the
statement was inconclusive. [Footnote 17
] And the Senator whose statement is relied on
was not in charge of the bill, nor was he a member of
Page 351 U. S. 314
any committee that had considered it. Moreover, the McGuire Act
was not a Senate bill, having been passed by the House of
Representatives prior to this Senate discussion. There is nothing
in the proceedings of the
Page 351 U. S. 315
House to indicate that the meaning for which appellee contends
should be given to the Act. Similarly, except to show congressional
concern that the prohibition against "horizontal" price-fixing be
continued, the Senate and House debates on the proviso in the
Miller-Tydings Act are of little assistance with respect to the
problem before us.
The court below did not rely on the legislative history, finding
it to be "unedifying and unilluminating." [Footnote 18
] We agree with this appraisal, but
are not troubled by it, since the language of the proviso in
question is unambiguous. [Footnote 19
] It excludes from the exemption from the
rule of illegality resale price maintenance
contracts between firms competing on the same functional level.
Both the Government and appellee press upon us economic
arguments which could reasonably have caused Congress to support
their respective positions. [Footnote 20
] We need
Page 351 U. S. 316
not concern ourselves with such speculation. Congress has marked
the limitations beyond which price fixing cannot go. We are not
only bound by those limitations, but we are bound to construe them
strictly, since resale price maintenance is a privilege restrictive
of a free economy. Cf. United States v. Masonite Corp.,
316 U. S. 265
316 U. S.
The judgment of the District Court dismissing the complaint
must, therefore, be reversed and the case remanded for further
proceedings not inconsistent with this opinion.
Reversed and remanded.
26 Stat. 209.
50 Stat. 693.
66 Stat. 632.
122 F. Supp. at 337-339. The district judge provided an
illustration of the kind of conduct which might satisfy his
"If, for example, it could be established that a producer became
a wholesaler, though not in competition with an independent
wholesaler, and stipulated prices for his own and the independent
wholesaler as a first step toward and with intent to gouge
consumers, that might suffice prima facie
as violation of
the Sherman Act outside the privilege of the fair trade
350 U.S. 922.
26 Stat. 209.
E.g., United States v. Trenton Potteries Co.,
273 U. S. 392
273 U. S. 397
Ethyl Gasoline Corp. v. United States, 309 U.
, 309 U. S. 458
See also Standard Oil Co. v. United States, 221 U. S.
, 221 U. S. 65
United States v. Socony-Vacuum Oil Co., 310 U.
, 310 U. S.
310 U.S. at 310 U. S.
United States v. Bausch & Lomb Co., 321 U.
, 321 U. S.
50 Stat. 693. This proviso qualified the proviso immediately
preceding it, which amended § 1 of the Sherman Act so as to make
lawful resale price maintenance contracts entered into by
manufacturers of branded or trademarked goods if such contracts are
authorized by state law as to intrastate transactions and if the
commodity affected is in "free and open competition with
commodities of the same general class produced or distributed by
others. . . ."
66 Stat. 632. The McGuire Act amended § 5(a) of the Federal
Trade Commission Act by adding, inter alia,
This specifically exempts from the antitrust laws price fixing
under "fair trade" agreements which bind not only retailers who are
parties to the agreement, but also retailers who refuse to sign the
agreement. As in the Miller-Tydings Act, the statutory exemption
was qualified by an important proviso. This stated:
"(5) Nothing contained in paragraph (2) of this subsection shall
make lawful contracts or agreements providing for the establishment
or maintenance of minimum or stipulated resale prices on any
commodity referred to in paragraph (2) of this subsection, between
manufacturers, or between producers, or between wholesalers, or
between brokers, or between factors, or between retailers, or
between persons, firms, or corporations in competition with
Appellee's brief, p. 6. In the District Court and in its motion
to affirm filed in this Court, however, appellee claimed that the
proviso applies only to agreements
"between manufacturers of competing products, or between
wholesalers of competing products, or retailers of such products,
fixing the prices at which two or more
products are to be sold."
(Appellee's emphasis.) Motion to affirm, pp. 5-6.
Previous phrases of the proviso appear in state "fair trade"
laws, upon which the proviso seems to have been modeled. FTC Report
on "Resale Price Maintenance," pp. 80-81 (1945). The last phrase,
however, has apparently never been included in any state statute.
Thus, meticulous inclusion of this phrase in the federal acts is
not without significance.
98 Cong.Rec. 8870. Senator Humphrey, in answer to an inquiry by
Senator Sparkman, said:
". . . If, for example, when a producer, who sells to
distributors, wholesalers, retailers, and consumers makes a resale
price-maintenance agreement relative to a commodity made by him and
bearing a trademark or brand, with a distributor, wholesaler, or
retailer who resells such commodity at either the wholesale, or
retail level, there exists a vertical resale price-maintenance
contract which would be lawful under the bill if the requirements
of paragraph (2) are met."
"On the other hand, if one wholesaler enters into a resale
price-maintenance agreement with another wholesaler prescribing the
price at which they both sell a trademarked or branded commodity
which they both buy from the producer, that agreement would be
horizontal, and would not be made lawful.
"In other words, wholesalers getting together on a price are
acting illegally. For a manufacturer to get together with other
manufacturers to maintain prices is illegal, but for a manufacturer
to say that a certain product will sell at a certain price from the
manufacturer down to the retailer is legal under the limitations
prescribed in paragraph (2) of section 5(a) of the Federal Trade
"In general, the test of whether a resale price-maintenance
contract is vertical is if the contract is between a seller and
buyers who resell the original seller's product; whereas, the test
of whether a resale price-maintenance contract is horizontal is if
it is between competing sellers between whom the relation of buyer
and seller or reseller does not exist as to the product
"It is important to keep this distinction in mind, because
many producers of trademarked items sell them to consumers,
retailers, and wholesalers alike.
"Under the bill, such firms may make resale
price-maintenance contracts with both wholesalers and retailers,
because such contracts are vertical, that is, between sellers and
While, in one sense, firms in this position function
not only as producers, but also as wholesalers and retailers, they
may still lawfully make contracts with other wholesalers and
retailers when, in making such contracts, they act as producers of
a trademarked or branded commodity, rather than as wholesalers and
retailers entering into forbidden horizontal resale
price-maintenance contracts with other wholesalers or other
It should be noted that these remarks appear to be confined to
the "between wholesalers" and "between retailers" phrases, and do
not deal with the "corporations in competition" phrase. And, even
as to the former, it is not at all clear that Senator Humphrey was
discussing the situation where actual competition exists between
the manufacturer-wholesaler and independent wholesalers. As
indicated in note 15
until we noted probable jurisdiction, appellee
flatly disagreed with an important part of this statement.
122 F. Supp. at 336.
Cf. Greenwood v. United States, 350 U.
, 350 U. S.
The Government maintains that a resale price maintenance
agreement between a manufacturer-wholesaler and competing
independent wholesalers, in addition to eliminating competition
between the parties, enables the former, because of its leverage as
a manufacturer of branded products, to dictate the latter's prices
on these products. Such an agreement, the Government claims, also
leaves the manufacturer-wholesaler free to undersell the
independent wholesalers when dealing with large retailers directly
through its manufacturing division. And if the manufacturer's own
wholesale outlets are inefficient, resale price maintenance permits
it to insulate those outlets from the inroads of more efficient
operators by setting its "fair trade" price higher than otherwise.
According to the Government, none of these effects is present where
price-fixing exists between independent wholesalers and a
Appellee contends that the economic effects of "fair trading"
are the same whether or not the manufacturer has its own wholesale
outlets, since the protection which resale price maintenance
provides to the manufacturer's good will "necessarily involves
elimination of price competition among different outlets for the
manufacturer's own branded merchandise." In both situations,
appellee claims, the manufacturer makes "at the source, as a
manufacturer, . . . downstream price-fixing arrangements with its
The court below indicated an awareness of the economic arguments
on both sides, but refused to follow
"either of alternate horns . . . in the dilemma of fair trade
agreements with independent wholesalers by a manufacturer who is
also a wholesaler. . . ."
122 F. Supp. at 337. Instead, the district judge advocated a
case-by-case examination of the economic setting in which the
question arises, with the burden on the Government to show "some
additional restraint destructive of competition." 122 F. Supp. at
For discussion of these economic contentions and the conclusions
which they are designed to support, see
Price Maintenance and Market Integration: Fair Trade or Foul Play?
22 Geo.Wash.L.Rev. 658; Note, 64 Yale L.J. 426; 54 Col.L.Rev.
MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER and MR. JUSTICE
BURTON join, dissenting.
Lack of sympathy with an Act of Congress does not justify giving
to it a construction that cannot be rationalized in terms of any
policy reasonably attributable to Congress. Rather, our duty, as
always, is to seek out the policy underlying the Act and, if
possible, give effect
Page 351 U. S. 317
to it. In this instance, I think the Court has departed from
that rule by giving the Miller-Tydings and McGuire Acts an
artificial construction which produces results that could hardly
have been intended by Congress.
The purpose of the state fair-trade laws is to allow the
manufacturer of a brand-named product to protect the goodwill his
name enjoys by controlling the prices at which his branded products
are resold. Old Dearborn Distributing Co. v. Seagram-Distillers
Corp., 299 U. S. 183
299 U. S.
-194. The necessary result -- indeed, the very object
-- is to permit the elimination of price competition in the branded
product among those who sell it. Congress has sanctioned those laws
in the Miller-Tydings and McGuire Acts, considering them not to be
offensive to federal antitrust policy. [Footnote 2/1
] Sufficient protection to the public
interest was deemed to be afforded by the competition among
different brands, a safeguard made express by the provision of the
Miller-Tydings and McGuire Acts denying fair-trade contracts
exemption from the antitrust laws unless the fair-traded product is
"in free and open competition with commodities of the same general
class." In short, the very purpose of the Acts is to permit a
manufacturer to set the resale price for his own products while
preserving competition between brands -- that is, between the
fair-traded item and similar items produced by other
If we accept the legislative judgment implicit in the Acts that
resale price maintenance is necessary and desirable to protect the
goodwill attached to a brand name,
Page 351 U. S. 318
there is no meaningful distinction between the fair-trade
contracts of integrated and non-integrated manufacturers. Certainly
the integrated manufacturer has as strong a claim to protection of
his goodwill as a non-integrated manufacturer, and the economic
effect of the contracts is the same. In both cases, price
competition in the resale of the branded product is eliminated, and
in neither case does the price-fixing extend beyond the
manufacturer's own product. While the Government concedes the right
of a non-integrated manufacturer to eliminate price competition in
his products between wholesalers, it finds a vice not contemplated
by the Acts when one of the "wholesalers" is also the manufacturer,
for then the contracts eliminate competition between the very
parties to the contracts. But, in either case, all price
competition is eliminated, and I am unable to see what difference
it makes between whom the eliminated competition would have existed
had it not been eliminated. The other bases of distinction
suggested by the Government are equally tenuous, and reflect a
subtlety of analysis for which there is no support in either the
Acts or their history.
As noted above, the Acts necessarily contemplate the elimination
of price competition in the resale of a particular branded product
and rely for protection of the public interest upon competition
between brands. Viewed in the light of this purpose, the provisos
become readily understandable. The vice of price-fixing agreements
between those in competition with each other, whether at the
manufacturing, wholesaling, or retailing level, is that they can be
utilized to eliminate competition between brands. Thus,
manufacturers might agree to fix the resale prices of their
competing brands in relation to each other; the same result, on an
even broader scale, could be achieved by agreements between
wholesalers or retailers. Further, agreements initiated by anyone
other than the owner of the brand name are unnecessary to the
protection of goodwill, the very justification for permitting
fair-trade contracts. Thus, an agreement between wholesalers to fix
the price of a product bearing the trade name of neither would
serve no purpose other than the elimination of competition.
Interpreting the provisos in the light of these considerations, I
conclude that an integrated manufacturer selling
Page 351 U. S. 320
its products under fair-trade contracts to independent
wholesalers should be deemed to be acting as a "manufacturer,"
rather than as a "wholesaler." This interpretation of the provisos
fits with their terms, and produces, rather than an arbitrary
discrimination hardly intended by Congress, a result fully in
harmony with the policy of the Acts to permit manufacturers to
maintain the resale prices of their branded products while
preserving competition between brands. [Footnote 2/2
For these reasons, therefore, I would hold McKesson's contracts
to be within the Miller-Tydings and McGuire Acts, and would affirm
the judgment below.
The Court refers to the Miller-Tydings Act as having been
"passed as a rider to a District of Columbia, revenue bill." It is
pertinent to note that, in passing the later McGuire Act, Congress
not only reaffirmed the policy of the Miller-Tydings Act, but also
eliminated the restrictive effect of this Court's decision in
Schwegmann Bros. v. Calvert Distillers Corp., 341 U.
, as regards "non-signers" of fair-trade
The Federal Trade Commission, the administrative agency
specially charged with administering the McGuire Act, has reached
like conclusions. See Eastman Kodak Co.,
3 CCH Trade
Reg.Rep. (10th ed.), par. 25, 291.