192A.1 Definitions.

For the purpose of this chapter:

1. "Broker" means any person engaged in negotiating sales or purchases of selected dairy products for or on behalf of a processor, distributor, or retailer.

2. "Dairy product" means milk, skim milk, cream, sour cream, ice cream, ice cream mix, ice milk except that sold in semifrozen form, ice milk mix, cottage cheese, frozen desserts, reconstituted milk, minimal milk fat products, and any additive variant of any dairy product.

3. "Distributor" means any person engaged in the business of selling any dairy product at wholesale and any person engaged in the business of selling any dairy product at retail on home delivery routes.

4. "Person" means any individual, corporation, co-operative, association, partnership, or other business unit.

5. "Processor" means any person engaged in the business of manufacturing, processing, or packaging dairy products.

6. "Retailer" means any person within this state engaged in the business of operating any retail establishment or institution, including but not limited to hotels, restaurants, grocery stores, drug stores, and automatic vending machines where dairy products are consumed or sold to customers. This subsection shall not apply to schools, churches or other charitable institutions not operated for profit.

7. "Sale" or "sell" means and includes any commercial transfer for consideration, exchange, barter, gift, or offer for sale and distribution in any manner or by any means.

8. Any subsidiary or affiliate corporation, co-operative, officer, director, or partner of a corporation, co-operative, or partnership which is a processor or distributor of dairy products is deemed to be a processor or distributor of dairy products.

192A.10 Loans to retailers prohibited--exception.

No processor or distributor shall make or underwrite loans to a retailer or become bound in any manner for the financial obligation of any retailer except that a processor or distributor may lend money to a retailer for the purchase of equipment for the storage, transportation, and display of dairy products. Such loans may be made to the retailer provided the loan is for not more than ninety percent of the purchase price with at least six percent annual interest on the principal amount and on the unconditional written promise of the retailer that the loan shall be paid within a period not to exceed thirty-six months.

192A.11 Equipment restrictions.

No processor or distributor shall furnish, sell, give, lend, or rent any equipment to a retailer except:

1. Processors and distributors, under a bill of sale or conditional sales contract describing the property sold and specifying the price and terms of sale, may sell equipment for the storage, transportation, and display of dairy products to the retailer. The selling price of such equipment shall be not less than the cost to the wholesaler less ten percent per year depreciation plus transportation and installation costs plus at least six percent, but in no event shall the price be less than ten dollars per unit. If the processor or distributor makes the sale under a security agreement or conditional sales contract, the terms of sale shall be no more favorable to the retailer than those provided in this section.

2. Processors and distributors may provide without restriction coin-vending machines from which the product vended is intended by such processor or distributor to be consumed on the premises.

3. Processors and distributors may furnish equipment for the storage, transportation, or display of dairy products for one period of not longer than ten consecutive days a year to any one retailer for use at a fair, exhibition, exposition, or other promotional event for agricultural, industrial, charitable, educational, religious or recreational purposes.

4. A processor or distributor may lend equipment to a retailer, for not longer than two consecutive weeks each month, if the equipment is used for the display and sale of the processor's or distributor's products. The equipment must be mounted on wheels, it must be designed for consumer access on all sides, and it must have a capacity of less than fifteen cubic feet.

192A.12 Repair of other equipment limited.

No processor or distributor shall maintain or make repairs of any equipment owned by a retailer except equipment used exclusively for dairy products. On such maintenance or repairs, the processor or distributor shall make charges for the service and parts at the same prices as are charged by third persons rendering such service in the community where the retailer is located. In no event shall the charges be less than the cost to the processor or distributor plus a reasonable margin of profit.

192A.13 Gifts to retailers prohibited.

No processor or distributor shall give, offer to give, furnish, finance, or otherwise make available any free goods to any person, directly or indirectly, in connection with the sale of dairy products or to any other person doing business with such person, or give, offer to give, furnish, finance, or otherwise make available any payments, gifts, or grants of anything of value to any retailer. However, this section does not prevent the use in advertisements or otherwise of "cents-off" purchase price coupons or "refund" coupons or the redeeming of the coupons from a retailer, and does not prevent any of the following:

1. The furnishing of point of sale advertising material made of paper, cardboard, or other material not of a permanent nature for the use in the promotion of the products of such processor or distributor which remain inside retailer locations.

2. The furnishing of hostesses or demonstrators at any retailer's location to promote the products of the processor or distributor.

3. The advertising by a processor or distributor of products through any advertising media the processor or distributor selects which does not involve allowances, payments, or the furnishing of other property to persons purchasing such products in a manner prohibited by this section.

4. Advertising allowances which do no more than reimburse a retailer for costs in advertising dairy products of the processor or distributor.

192A.14 Processors or distributors may have own outlets.

No processor or distributor shall be prohibited from operating a retail outlet for retail sales or prohibited from using in the retail outlet any equipment or advertising or miscellaneous matter owned by the processor or distributor provided the retail outlet is under direct control and management of the processor or distributor.

192A.15 Gifts of products on premises.

No processor or distributor shall be prohibited from giving away dairy products to be consumed on the sale premises.

192A.16 Unlawful for retailer to receive proscribed items.

It shall be unlawful for any retailer to receive, directly or indirectly, from or through a processor, distributor, or broker, any discount, rebate, allowance, service, price discrimination, advertising material, loan, equipment, payment, or any other thing of value all as prohibited by this chapter.

192A.17 Brokers acts limited.

It shall be unlawful for a broker or any officer or agent of any brokerage firm to participate, directly or indirectly, in any practice prohibited by this chapter. It shall be unlawful for any processor, distributor, or retailer to engage or offer to engage, directly or indirectly, through a broker in any practice prohibited by this chapter.

192A.18 Grievances reported to department.

Any person claiming to be injured by another person through the violation of any of the provisions of this chapter may file in writing a statement of such violation with the department. Upon receipt of the written statement, the department shall immediately cause an investigation to be made of the alleged violation. Whenever it shall appear that any person is violating or threatening to violate any of the provisions of this chapter or the regulations or orders of the secretary, then the department may call upon the county attorney of any county in which such violation occurred to bring suit against such person in the district court to restrain such person from continuing or from carrying out the acts or practices alleged. In such suit the county attorney may obtain such injunction prohibitory and mandatory including temporary restraining orders and temporary injunctions as the facts may warrant without being required to prove that an adequate remedy at law does not exist and without being required to give bond.

192A.19 Reports and answers to department.

Whenever the department has reason to believe that any distributor or retailer or processor may be in possession of information relevant to an investigation by it of suspected violations of the provisions of this chapter, the secretary may require such person to file with the secretary in such form as the secretary may prescribe special reports or answers in writing to specific questions furnishing such information. Such reports and answers shall be made under oath or otherwise as the secretary may prescribe and shall be filed with the secretary within such reasonable period as the secretary may prescribe. Any person who fails without lawful cause to file such reports or answers in writing within the period prescribed or shall willfully make or cause to be made any false statements in any such report or answer in writing shall be guilty of a simple misdemeanor.

192A.2 Division of dairy trade practices.

The secretary of agriculture is hereby entrusted with the administration and enforcement of this chapter. There is hereby created in the department of agriculture and land stewardship a division to be known as the "Division of Dairy Trade Practices". The head of the division shall be the "Chief of the Division of Dairy Trade Practices". All powers of the secretary under this chapter may be exercised by and through the chief of the division of dairy trade practices. The secretary shall employ such professional and other personnel as, in the secretary's judgment, shall be necessary to the proper performance of the secretary's duties hereunder.

192A.20 Order to appear--judicial review.

Whenever the secretary has reason to believe that any person has violated any of the provisions of this chapter or any rules or regulations adopted thereunder, the secretary may enter an order requiring such person to appear before the secretary and show cause why an order should not be entered requiring such person to cease and desist from the violations charged. Such order shall set forth the alleged violations, fix the time and place of the hearing, and provide for notice thereof which shall be given not less than twenty days before the date of such hearing. After hearing by the secretary, or if the person charged with such violation fails to appear at the time of said hearing, if the secretary finds such person to be in violation the secretary shall enter an order requiring such person to cease and desist from the specific acts, practices, or omissions so found to be in violation and from related acts, practices or omissions.

Any order entered by the secretary or other action of the secretary may be judicially reviewed in accordance with the terms of the Iowa administrative procedure Act.

Any person violating any order of the secretary under the first paragraph of this section after the period for seeking judicial review thereof has elapsed without the filing of a petition for such review, or on the termination of any review proceedings shall be subject to a civil penalty to be levied by the district court in a proceeding instituted for that purpose in an amount of not less than five hundred dollars and not more than ten thousand dollars provided that in the case of continuing violations the minimum amount of such penalty shall be either five hundred dollars or twenty-five dollars for each day of violation, whichever is the larger.

192A.21 Oaths and subpoenas.

The department is authorized and empowered to administer oaths and to issue subpoenas for persons and pertinent operating records in making investigations provided in section 192A.19. If a person fails or refuses to obey a subpoena issued under this chapter, the department may apply to the district court to issue an order requiring the person to appear before the department to produce evidence or to give testimony concerning the matter under investigation. The application for the order shall be filed with the district court within the county in which the investigation is conducted or in which the person guilty of failure or refusal to obey is found or resides or transacts business or has the person's principal place of business. Any person willfully failing to obey an order of the court is guilty of contempt of court and shall be proceeded against as provided by law.

192A.22 Intervention--punitive damages.

Any person who is injured in business or property by reason of another person's violation of any provisions of this chapter may intervene in the suit for injunction instituted against the other person. The injured party may bring a separate action and recover three times the actual damages sustained as a result of the violation together with the costs of the suit or may sue to enjoin the violation of any provision of this chapter.

192A.23

Repealed by 78 Acts, ch 1022, § 5.

192A.24 Investigation and hearing.

Any person whose license is sought to be denied, suspended, or revoked shall have full rights to counsel and to produce witnesses in the person's behalf at the hearing. After full investigation and hearing, the department may deny, suspend, or revoke the license of any person who is found to have willfully violated any provision of this chapter. When the department finds that a violation warrants the suspension of the license, no license shall be suspended for a period to exceed thirty days upon proof of a first violation or for a period to exceed six months upon proof of a second violation. Upon proof of a third and subsequent violations, the license shall be suspended for a period of one year where the department finds that such violation warrants a suspension.

192A.25 Procedure--judicial review.

The department shall by certified mail or by personal service notify the person whose license has been denied, suspended, or revoked setting forth the reasons for the decision. The denial, suspension, or revocation shall become effective thirty days after the mailing or service of the notification. Judicial review may be sought of any such action in accordance with the terms of the Iowa administrative procedure Act.

192A.26

Repealed by 74 Acts, ch 1090, § 211.

192A.27 Limitation of action.

Any action arising under this chapter, whether in law or equity, shall be commenced within two years after the right of action first accrues or is forever barred.

192A.28 Rules.

The department is authorized and directed to promulgate rules to carry out the purposes of this chapter.

192A.29 Storage cabinets formerly installed.

Storage cabinets prohibited under section 192A.12 supplied by processors and distributors to retailers prior to July 4, 1965, shall be removed from the retailer's premises or sold as provided in this chapter prior to June 30, 1966.

192A.3 Unlawful discrimination.

It shall be unlawful for any person engaged in business within the state of Iowa, either directly or indirectly, to discriminate in price between different purchasers of dairy products of like grade and quality where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly, 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 the grantor or receiver. Nothing herein shall prevent:

1. 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 dairy products are sold or delivered to purchasers or differentials otherwise permitted in this chapter.

2. Persons engaged in selling dairy products from selecting their own customers in bona fide transactions are not in restraint of trade.

3. Price changes from time to time in response to changing conditions affecting the market for or the marketability of dairy products 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 dairy products.

4. Price differentials made in good faith to meet an equally low price of a competitor, whether the price of the competitor is in compliance with or in violation of this chapter.

192A.30 Permit fees.

For the purpose of administering and enforcing this chapter, a processor or a person purchasing milk products from a processor for wholesale distribution shall obtain a permit, as provided by departmental rule, before milk products are sold by the person or wholesale purchaser in this state. The processor or wholesale purchaser shall pay to the secretary a permit fee in an amount set by the secretary, not to exceed five mills per hundredweight on milk processed into dairy products as defined in section 192A.1, and sold within the state of Iowa. However, the permit fee for the sale of ice cream or an additive variant of ice cream or nonmilk-fat imitation shall not exceed three mills per gallon. Products upon which fees have been paid are exempt from further fees in successive transactions. The fees for each month thus computed shall be paid to the secretary on or before the twenty-fifth day of the following month.

Fees paid to the secretary shall be deposited into the general fund of the state and shall be subject to the requirements of section 8.60.

192A.4 Unlawful price differentials.

It shall be unlawful for any person to discriminate in price by selling or offering to sell any dairy product to any purchaser in the state of Iowa at prices lower than those exacted by such persons elsewhere in the state for the purpose or with the effect of injuring competition or tending to create a monopoly; provided however, that nothing herein contained shall prevent price differentials which make only due allowance for differences in the cost of sale or transportation resulting from differing methods or quantities in which such dairy products are sold or transported to such purchasers; and provided further, that nothing herein contained shall prevent sales made in good faith to meet an equally low price of a competitor, whether the price of the competitor is in compliance with or in violation of this chapter.

192A.5 Minimum price agreements unlawful.

It shall be unlawful for any processor, distributor, or retailer to engage in the following practice:

To enter into any agreement or contract with any other person for the establishment or maintenance of minimum prices of dairy products in restraint of trade and for the purpose of eliminating free and open competition in the sale of dairy products.

192A.6 Discounts or rebates.

No processor or distributor shall give or extend discounts or rebates, directly or indirectly, to retailers or other processors or distributors on dairy products or give or extend to such purchasers any services connected with the delivery, handling or stocking of such products except as provided in this chapter. A processor or distributor may provide services to a particular processor, distributor, or retailer or may sell dairy products at a price necessary to meet a bona fide offer by a competitor. The service or discount shall not be given until the processor or distributor first files with the department a written record of the date and terms of the competitive offer, the name of the processor, distributor, or retailer to whom the offer was made, and the name of the competitor who made the offer. Any such record filed with the department shall be used only for determining or verifying proof of violations of this chapter.

192A.7 Price list to be filed.

All distributors offering dairy products for sale within the state shall file with the department on a form provided by said department a complete price list showing the invoice price of such distributor of all items of dairy products sold or offered for sale by them. Distributors who offer dairy products for sale both at their respective places of business and deliver to retailer or retail outlets, shall include on such price lists filed with the department the different prices established for dairy products offered for sale at their respective places of business and for dairy products delivered to the retailer or retail outlet. Distributors who offer dairy products for sale to consumers on home delivery routes shall include on such price lists filed with the department, the different prices established for dairy products offered for sale to such consumers. Within thirty days after July 4, 1965, every distributor shall file with the department its initial price schedules and schedules of discounts and rebates and thereafter, every distributor shall charge its prices in accordance with its schedule on file with the department until such price schedule is changed as hereinafter provided. Before any distributor may make any change in its price schedule and prices charged, it shall give notice by certified mail to the department setting forth its new schedule of prices or new schedule of discounts and rebates prior to the effective date of any change in such schedule on file with the department (except that where prices are changed in good faith to meet an equally low price of a competitor, notice to the department of the new schedule of prices shall be given within two business days after such change). The initial filing of schedules or any new schedules shall be filed with the department either in person or by certified mail. Price lists filed with the department shall be used only for determining and proving violations of this chapter. Failure or refusal to file current price lists with the department shall be a violation of this chapter.

192A.8 Gift of signs to retailer prohibited.

No processor or distributor shall furnish, give, lend, sell, or rent any advertising signs of a permanent nature except signs advertising the processor's or distributor's own products. Not more than one-third of the space or cost of advertising signs permitted under this section may be used to identify the retailer.

192A.9 Payments for rent prohibited.

No processor or distributor shall make payments of money, credit, gifts, or loans to retailers as rental for the storage or display of dairy products on the premises where offered for sale by the retailer.