# Miller-Tydings Act (1937) **Signed:** August 17, 1937 by [[Franklin D. Roosevelt]] · 50 Stat. 693 · a proviso to Sherman Act §1 The statute that made **vertical minimum price fixing legal for 38 years**, and the clearest evidence that Congress never shared the view that low consumer prices are the point of antitrust. ## What it did State "fair trade" laws let a manufacturer of a branded good set a binding minimum resale price by contract, forbidding retailers from discounting below it. California passed the first in 1931; 28 states had them by 1937 and 44 by 1940. All of them were vulnerable, because a contract fixing resale prices is a restraint of trade under [[Sherman Antitrust Act]] §1 and *Dr. Miles* (1911) had made it per se illegal. Miller-Tydings supplied the federal exemption those state laws needed. The proviso was careful to exempt only *vertical* agreements — it expressly did not reach agreements "between manufacturers, or between producers, or between wholesalers, or between brokers, or between factors, or between retailers." Horizontal price fixing stayed criminal. ## How it passed Tydings attached it as a rider to the **District of Columbia revenue bill** in July 1937. The tactic was the point: Roosevelt opposed the substance, arguing it would raise the cost of living and drain purchasing power during a recovery, but could not veto the fair trade provision without shutting off District funding. He criticized the maneuver publicly and signed anyway. ## The arc to repeal When the Court held in *Schwegmann Bros.* (1951) that Miller-Tydings did not bind retailers who never signed a fair trade contract, Congress passed the **McGuire Act** (1952) to close that gap too. Repeal came as an anti-inflation measure. President Gerald Ford signed the **Consumer Goods Pricing Act of 1975** on December 12, 1975, striking both Miller-Tydings and McGuire: "The repeal of the fair trade laws will permit consumers to get the discounts in all 50 States." Resale price maintenance reverted to per se illegality under *Dr. Miles* — where it stayed until [[Leegin v. PSKS]] moved it to the rule of reason in 2007. ## Why it matters Together with the [[Robinson-Patman Act]] of the year before, Miller-Tydings is the strongest counter-evidence to [[Robert Bork]]'s claim that Congress always meant antitrust to maximize consumer welfare measured by price. **Congress legalized higher prices, on purpose, to protect independent retailers from chain-store discounting.** See [[Consumer Welfare Standard]] and [[US Antitrust and Monopoly Timeline]].