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FMA indicated that petitioner could earn promotional funds by:
putting a price reduction into effect during the previous 30
days; making a special distribution of cases to retail outlets;
or making a special purchase (direct or indirect).
Under the Cooperative Merchandising Agreement (CMA) with
P&G, P&G created a promotional account for each brand listed in
the agreement; e.g., Ivory bar soap, Top Job, Spic & Span, and
Bounce. The amount paid into the promotional account for each
quarter was determined by multiplying 34 cents by the number of
cases of the specified brands shipped to petitioner during the
base period, which was defined as the same quarter during the
previous year. Petitioner could use the entire amount in the
promotional account, under payment terms set forth in the CMA,
for print, broadcast, display, or outdoor billboard advertising.
The payment terms varied. For example, if petitioner performed
in print media, petitioner would be entitled to "cost plus 50%
for advertising overhead expense," or, as an alternative, it
could "elect to be paid at the rate of $1.00 per physical case
distributed to stores in support of a feature on the Brands in
the Merchandiser's best print medium used for any item during the
period of the sale." In addition, petitioner was entitled to use
up to 20 percent of the promotional account for other activities
in the amounts specified in the CMA; for example, petitioner
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Last modified: May 25, 2011