La. Admin. Code tit. 7 § XXXI-323

Current through Register Vol. 50, No. 9, September 20, 2024

Section XXXI-323 - Burdens and Presumptions

A. Sales below Cost

1. Upon proof being made at any adjudicatory hearing that a licensee has advertised, offered to sell, or sold dairy products at less than cost as defined herein plus applicable taxes, the licensee shall be presumed in violation of the regulations proscribing sales below cost.

2. The licensee may rebut that presumption by proving that:

a. such advertisement, offer to sell, or sale was not for the proscribed purpose, did not have a proscribed effect or was otherwise lawful, such as that it was made in good faith to meet an equally low price of a competitor when all of the following circumstances were present:

i. the advertisement, offer to sell, or sale was limited to that customer, group of customers or that market area to which the price was available from competitors;

ii. the advertisement, offer to sell, or sale occurred only while the competitive circumstances justifying such sale below cost existed; and

iii. the advertisement, offer to sell, or sale is reported in advance in writing to the board or commissioner, or, if advance notification is not possible, within 72 hours thereafter;

b. such advertisement, offer to sell, or sale was necessary in response to actual or imminent deterioration of dairy products, seasonal obsolescence of dairy products, distress sales under court process, final liquidation sales or sales in good faith in discontinuance of a business or in discontinuance of a dairy product, and provided that the price at which the dairy product is advertised, offered, or sold is reported in advance to the board or commissioner, or, if advance notification is not possible, within 72 hours thereafter.

3. In the event a representative of the board or of the commissioner has a reasonable basis upon which to believe that a licensee may be selling dairy products below costs and said licensee denies access, fails to produce or produces records which will not permit a determination of the cost of production then, in that event, the cost of the dairy products for the relevant period shall be presumed to be in excess of the selling price. This presumption shall be rebuttable but the burden of rebutting same shall be upon the licensee.

B. Price Discrimination

1. Upon proof being made at any adjudicatory hearing that there has been discrimination in price, services, facilities furnished, or any other proscribed discrimination, the licensee shall be presumed to be in violation of the rules and regulations proscribing discrimination.

2. The licensee may rebut that presumption by proving that:

a. the discrimination in price, services, or facilities was necessary in response to actual or imminent deterioration of dairy products, seasonal obsolescence of dairy products, distress sales under court process, final liquidation sales or sales in good faith in discontinuance of a business or in discontinuance of a dairy product; or

b. the discrimination in price, services, or facilities was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor and all of the following circumstances were present:

i. the discrimination in price, services, or facilities was limited to that customer, group of customers or that market area to which the price was available from competitors;

ii. the discrimination in price, services, or facilities occurred only while the competitive circumstances justifying such discrimination existed; and

iii. the discrimination in price, services or facilities is reported in advance in writing to the board or commissioner, or, if advance notification is not possible, within 72 hours thereafter.

La. Admin. Code tit. 7, § XXXI-323

Promulgated by the Department of Agriculture and Forestry, Office of Agro-Consumer Services, Dairy Stabilization Board, LR 20:404 (April 1994).

AUTHORITY NOTE: Promulgated in accordance with R.S. 3:4108.