ORS 646.040¹
Price discrimination prohibited
  • price differentials

(1) It is unlawful for any person engaged in commerce or food commerce, or both, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities, or services or output of a service trade, of like grade and quality or to discriminate in price between different sections, communities or cities or portions thereof or between different locations in sections, communities, cities or portions thereof in this state, where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.

(2) Subsection (1) of this section does not prevent:

(a) Differentials which make only due allowance for differences in the cost of manufacture, sale or delivery, resulting from the differing methods or quantities in which the commodities are sold or delivered to purchasers.

(b) Persons engaged in selling goods, wares or merchandise, or service or output of a service trade, in commerce from selecting their own customers in bona fide transactions and not in restraint of trade.

(c) Price changes from time to time where in response to changing conditions affecting the market for or marketability of the goods concerned, such as but not limited to actual or imminent deterioration of perishable goods, obsolescence of seasonal goods, distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned.

Notes of Decisions

In ac­tion between competitors in ready-mix concrete industry, evidence was insufficient to es­tab­lish substantial impair­ment of competi­tion as re­quired by this sec­tion. Redmond Ready-Mix, Inc. v. Coats, 283 Or 101, 582 P2d 1340 (1978)

In ac­tion by auto body shop against insurance company for knowing receipt of prohibited price discrimina­tions under this sec­tion and ORS 646.090 (Inducing or receiving price discrimination prohibited), judg­ment n.o.v. was properly granted defendant for lack of evidence that price discrimina­tions received by defendant from an­oth­er body shop could have affected competi­tion among body shops or insurance companies or tended to create monopoly in either market. Top Service Body Shop, Inc. v. Allstate Insurance Co., 283 Or 201, 582 P2d 1365 (1978)

Under this sec­tion denial of di­rected verdict was proper where there was evidence that defendant competed with plaintiff in plaintiff's market, even though plaintiff did not compete with defendant in defendant's market. Yamaha Store of Bend, Inc. v. Yamaha Motor Corp., 310 Or 333, 798 P2d 656 (1990), as modified by 311 Or 88, 806 P2d 123 (1991)

Trial court erred in ruling that jury could consider plaintiff's evidence relating to noncurrent inventory in awarding damages for price discrimina­tion. Yamaha Store of Bend, Inc. v. Yamaha Motor Corp., 310 Or 333, 798 P2d 656 (1990), as modified by 311 Or 88, 806 P2d 123 (1991)

This pro­vi­sion prohibits only those price differentials that injure competitive process. Cain v. Chevron U.S.A., Inc., 757 F Supp 1120 (D. Or. 1991), aff'd 972 F2d 1337

Notes of Decisions

These sec­tions were modeled after Robinson-Patman amend­ment to Clayton Act and federal cases interpreting federal statutes are persuasive in their interpreta­tion. Redmond Ready-Mix, Inc. v. Coats, 283 Or 101, 582 P2d 1340 (1978)

Price discrimina­tion under Oregon Anti-Price Discrimina­tion Law may include buy-back of obsolete inventory and difference in credit terms available to competing dealers. Forster v. Kawasaki Motors Corp., 73 Or App 439, 698 P2d 1001 (1985), Sup Ct review denied

Atty. Gen. Opinions

"Kickbacks" on school photographer contracts, (1974) Vol 37, p 49

Law Review Cita­tions

51 OLR 341-354, 408 (1972)

Chapter 646

Notes of Decisions

Subject matter regulated by this chapter is not "preempted" by Federal Robinson-Patman Act so as to render this chapter invalid. W. J. Seufert v. Nat. Restaurant Supply Co., 266 Or 92, 511 P2d 363 (1973)

Whether an injunc­tion should issue when a court finds a viola­tion of the Act is a matter of discre­tion. State ex rel Johnson v. Interna­tional Harvester Co., 25 Or App 9, 548 P2d 176 (1976)

This chapter imposes no af­firm­a­tive duty to inform customers of rates in absence of request, but prohibits making in­for­ma­­tion about prices available to some customers and not others. Wildish Sand & Gravel v. Northwest Natural Gas Co., 103 Or App 215, 796 P2d 1237 (1990), Sup Ct review denied

1 Legislative Counsel Committee, CHAPTER 646—Trade Practices and Antitrust Regulation, https://­www.­oregonlegislature.­gov/­bills_laws/­Archive/­2007ors646.­pdf (2007) (last ac­cessed Feb. 12, 2009).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 646, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­646ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information