A. It is unlawful for any person engaged in commerce, either directly or indirectly, intentionally, for the purpose of destroying competition or eliminating a competitor, to:

(1) discriminate in price between different purchasers of commodities of like grade and quality; or

(2) discriminate in price between different sections, communities or cities in this state where the effect is to lessen competition substantially, to create a monopoly in any line of commerce or to injure, destroy or prevent competition with any person who grants or knowingly receives the benefit of the discrimination, or with customers of either.

B. This section does not prevent:

(1) allowance for differences in cost of manufacture, sale or delivery resulting from differing methods or quantities in which commodities are sold or delivered;

(2) persons engaged in selling goods, wares or merchandise in commerce from selecting their own customers in bona fide transactions not in restraint of trade; or

(3) price changes in response to changing conditions affecting the market or marketability of goods.

History: 1953 Comp., § 49-11-3, enacted by Laws 1961, ch. 229, § 3.

Allowance of rebates. — Because of the similarities between the Price Discrimination Act (57-14-1 to 57-14-9) and the Robinson-Patman Act, the courts look to the federal law for assistance in interpretation and application of the state act, and rebates allowed upon the purchase of goods are permissible under the Robinson-Patman Act when there is no discrimination between buyers of the same classification and the rebates do not stifle competition or create a monopoly. Jay Walton Enters., Inc. v. Rio Grande Oil Co., 1987-NMCA-070, 106 N.M. 55, 738 P.2d 927, cert. denied, 106 N.M. 7, 738 P.2d 125.

Price differentials proper if based on valid criteria. — It is not a violation of the Price Discrimination Act (57-14-1 to 57-14-9 NMSA 1978) for a distributor to establish price differentials for the produce sold based on factors which are not designed or intended to eliminate competition or to create a monopoly, but which instead are based upon other valid criteria, such as cost differentials due to geographic proximity. Jay Walton Enters., Inc. v. Rio Grande Oil Co., 1987-NMCA-070, 106 N.M. 55, 738 P.2d 927, cert. denied, 106 N.M. 7, 738 P.2d 125.

No violation where price variations for purpose of equal profit. — Since the issue of competition involves questions of geographic proximity and marketing practices, where defendant company had distributed entirely through jobbers and with the company itself absorbing any loss as a result of price reductions in the area during the period in question so that all jobbers retained the same profit margin before and after the alleged price discrimination, and furthermore, where the nearest jobber to plaintiff was too distant geographically (54 miles) to be considered in competition with him, it was held that plaintiff itself negated any possibility of establishing a competitive relationship with defendant under either the United States or New Mexico antitrust laws, and that defendant's pricing policies, different from the policies of the other defendants, were inconsistent with plaintiffs' conspiracy count which basically alleged selective price reductions to monopolize the gasoline distributors market; thus, in the absence of any basis for allegations of competition or conspiracy on the part of defendant, the claims against it were dismissed and its motion for summary judgment was granted. Ingram v. Phillips Petroleum Co., 252 F. Supp. 674 (D.N.M. 1966).

Offsetting depressed prices in one locality by raising them in another. — Price discrimination statutes are designed to prevent a business from destroying competition through unfair pricing practices, such as, for example, depressing prices in one locality where there is competition and offsetting the loss by raising prices in another area where there is little or no competition. Jay Walton Enters., Inc. v. Rio Grande Oil Co., 1987-NMCA-070, 106 N.M. 55, 738 P.2d 927, cert. denied, 106 N.M. 7, 738 P.2d 125.

Functional availability of rebate plan. — The notion that a rebate plan must be "functionally available", is not expressly recognized in either this section or in the federal counterpart, § 2(a) of the Robinson-Patman Act, 15 U.S.C. § 13(a) and, although circumstances may exist in which a rebate plan or discount allowance may not be functionally available, the facts did not give rise to a basis for such finding. Jay Walton Enters., Inc. v. Rio Grande Oil Co., 1987-NMCA-070, 106 N.M. 55, 738 P.2d 927, cert. denied, 106 N.M. 7, 738 P.2d 125.

"Good faith" as a defense. — It is a defense to an action alleging price discrimination under the New Mexico Price Discrimination Act (57-14-1 to 57-14-9 NMSA 1978) to show that defendants acted in "good faith" and did not intend their actions to create a monopoly or to unlawfully discriminate against a competitor. Jay Walton Enters., Inc. v. Rio Grande Oil Co., 1987-NMCA-070, 106 N.M. 55, 738 P.2d 927, cert. denied, 106 N.M. 7, 738 P.2d 125.

Anti-competitive intent is question of fact for fact finder. — Whether a rebate plan was fashioned with an intention of injuring or destroying competition and whether defendants' actions tended to curtail or destroy competition are questions of fact for the fact finder. Jay Walton Enters., Inc. v. Rio Grande Oil Co., 1987-NMCA-070, 106 N.M. 55, 738 P.2d 927, cert. denied, 106 N.M. 7, 738 P.2d 125.

Averments of intrastate and interstate price discrimination avoid dismissal. — Assuming, arguendo, that the New Mexico antitrust and price discrimination statutes involved apply only to intrastate commerce, plaintiffs' affidavit accompanying their opposition to the defendant's motions to dismiss averred that plaintiffs complained of unfair competition within New Mexico as well as between New Mexico and Texas distributors, and since the mere fact that plaintiffs' volume had increased would not negate the possibility of actual harm, the motions to dismiss were denied. Ingram v. Phillips Petroleum Co., 252 F. Supp. 674 (D.N.M. 1966).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 54A Am. Jur. 2d Monopolies, Restraints of Trade and Unfair Trade Practices §§ 1069, 1071.

Giving of trading stamps, premiums, or the like, as violation of statute prohibiting sales below cost, 70 A.L.R.2d 1080.

Validity, construction, and application of state statute forbidding unfair trade practice or competition by discriminatory allowance of rebates, commissions, discounts, or the like, 41 A.L.R.4th 675.

87 C.J.S. Trademarks, Tradenames and Unfair Competition § 244.