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Raise a glass for the Unfair Sales Act repeal—or not, due to restrictive laws

Raise a glass for the Unfair Sales Act repeal—or not, due to restrictive laws

Wayne Hoffman
November 16, 2018
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November 16, 2018

For the last several years, I’ve used my pre-Thanksgiving Day column to write about a decades-old dumb Idaho law that cast a cloud on the season. Happily, this is my last column on this topic. Thankfully, Idaho lawmakers repealed that dumb law earlier this year.

The Idaho law in question was called the Unfair Sales Act. The 1939 law said, “The practice of selling certain items of merchandise below cost in order to attract patronage is a deceptive form of advertising and an unfair method of competition. Such practice misleads the consumer, works back against the farmer, obstructs commerce and diverts business from dealers who maintain a fair price policy, with the result of unemployment, underpayment of employees, excessive working hours, nonpayment of taxes and an inevitable train of undesirable consequences including economic depression. This act is designed to make illegal such practice and to promote the general welfare of the state of Idaho.”

Idaho’s law required that retail prices be marked up to cover the cost of doing business and, in the absence of evidence to the contrary, the Unfair Sales Act mandated that the markup be 6 percent. This made every Thanksgiving or Christmas loss-leader sale completely crazy. Crazy illegal. But a sale itself wasn’t required for the law to be broken. The mere advertisement of a below-cost product was illegal.

For years, legislators hesitated to repeal the law, making different excuses about how Main Street businesses might need to use the law against large national retailers like Walmart. Or that competition among gas stations would result in a price war that ran someone out of business. But this year, the opposition greatly faded, and the repeal of the 1939 law was among several pro-limited government bills that made it through both legislative chambers. Only 10 of 70 members of the House of Representatives voted against the repeal. The bill passed the Senate unanimously. Gov. Butch Otter signed the repeal bill.

Now look, I hated the state’s now-defunct price-fixing law, as a matter of principle insofar as it’s so anti-capitalistic and, at least on paper, screamed to the masses that the state government objects to massive discount sales that generate jobs, economic activity, and, indeed, joy. Yes, some infinitesimal possibility existed that the Unfair Sales Act would be invoked for whatever reason yet imagined. That’s theoretical.  

With the departure of the Unfair Sales Act, perhaps we should celebrate with an adult beverage on Thanksgiving. However, stock up now because the state of Idaho pretends to promote temperance by closely controlling how and where liquor is purchased in Idaho. The state owns liquor stores and sells liquor and drink mixes to the public.

Under Idaho law, Thanksgiving is one of the days that all state liquor stores are closed. To make matters worse, Thanksgiving is also one of those days that local governments have the option of banning alcohol sales.

According to the website Vinepair, which apparently has expertise in such matters, only 10 states in the country make it hard to get a drink on Thanksgiving. Idaho is one of the states. I have a suspicion it still will be when I write about this topic again in 2019.

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