The express terms of the statutory provision requires the
``recognition'' to be ``in'' the industry and not ``by'' the industry.
Thus, the basis for the determination as to what is recognized as retail
``in the particular industry'' is wider and greater than the views of an
employer in a trade or business, or an association of such employers. It
is clear from the legislative history and judicial pronouncements that
it was not the intent of this provision to delegate to employers in any
particular industry the power to exempt themselves from the requirements
of the Act. It was emphasized in the debates in Congress that while the
views of an industry are significant and material in determining what is
recognized as a retail sale in a particular industry, the determination
is not dependent on those views alone. (See 95 Cong. Rec. pp. 12501,
12502, and 12510; Wirtz v. Steepleton General Tire Co., 383 U.S. 190;
Mitchell v. City Ice Co., 273 F. 2d 560 (CA-5); Durkin v. Casa Baldrich,
Inc., 111 F. Supp. 71 (DCPR) affirmed 214 F. 2d 703 (CA-1); see also
Aetna Finance Co. v. Mitchell, 247 F. 2d 190 (CA-1).) Such a
determination must take into consideration the well-settled habits of
business, traditional understanding and common knowledge. These involve
the understanding and knowledge of the purchaser as well as the seller,
the wholesaler as well as the retailer, the employee as well as the
employer, and private and governmental research and statistical
organizations. The understanding of all these and others who have
knowledge of recognized classifications in an industry, would all be
relevant in the determination of the question.
