Potter Stewart

“ The principal rationale of the restriction of that section to commodities of 'like grade and quality' is simply that it is not feasible to measure discrimination and injury to competition where different products are involved. That rationale is as valid for economic as for physical variation between products. Once a substantial economic difference between products is found, therefore, the inquiry of the Commission should be ended, just as it is ended when a substantial physical difference is found. ”

“ The product purchased by a consumer includes not only the chemical components that any competent laboratory can itemize, but also a host of commercial intangibles that distinguish the product in the marketplace. [3] The premium paid for Borden brand milk reflects the consumer's awareness, promoted through advertising, that these commercial attributes are part and parcel of the premium product he is purchasing. [4] The record in the present case indicates that wholesale purchasers of Borden's private label brands continued to purchase the premium brand in undiminished quantities. ”

“ Patman's statement makes the blanket assertion that all products of the same quality must be sold at the same price. As thus stated, premium brands would have to be sold at the same price as private label brands, regardless of injury to competition, cost justification, or other available defenses under the Act. ”

“ The Commission decisions are clear that the 'meeting competition' defense is not available to a seller who reduces the price of his premium product to the level of nonpremium products sold by his competitors. The Commission decision under § 2 (b) emphasize that market preference must be considered in determining whether a competitor is 'meeting' rather than 'beating' competition. ”

“ Compare E. Edelmann & Co., 51 F.T.C. 978 (differences in automobile replacement parts) ; Bruce's Juices, Inc. v. American Can Co., D.C., 87 F.Supp. 895, aff'd 187 F.2d 919 (C.A.5th Cir.) (differences in size of juice cans) ”