Clairol Incorporated v. Federal Trade Commission

Petitioner, Clairol Incorporated, seeks review of a cease and desist order entered by the Federal Trade Commission. The Commission has found that in two respects Clairol, in making promotional payments, discriminates between competing customers in violation of § 2(d) of the Clayton Act as amended by the Robinson-Patman Act, 15 U.S.C. § 13 (d). It has ordered Clairol to cease and desist from such discrimination.

I. DISCRIMINATIONS BETWEEN DIRECT-PURCHASING BEAUTY SALON CUSTOMERS

The issue here presented is whether Clairol’s beauty salon customers “compete in the distribution” of Clairol products. Clairol contends that such customers do not distribute Clairol products; that “distribution” as used in § 2 (d) means “resale;” that beauty salons do not sell Clairol products but themselves consume them in connection with the service they perform for their customers.

Clairol emphasizes that salons are service rather than sales establishments; that a salon patron pays a single charge for the services rendered and that no separate charge is made for the Clairol product used; that generally the cost of the Clairol product is a de minimis factor in the single charge made, which is…