In the 1947 case Federal Trade Commission v. Cement Institute et al., the U.S. Supreme Court upheld a ruling by the Federal Trade Commission (FTC) that found multiple cement manufacturers guilty of price discrimination under Section 5 of the FTC Act, which prohibits unfair or deceptive acts or practices in commerce. The cement companies had implemented a "multiple basing point" system, where they would calculate prices based on an imaginary delivery from various points regardless of actual shipping costs, leading to identical pricing across competitors and regions. This practice was deemed as stifling competition and creating artificial uniformity in prices contrary to free market principles. The court ruled that this constituted an unfair method of competition even though it did not fall within any specific prohibitions listed in antitrust laws such as Sherman Act or Clayton Act.

In the dissenting opinion for the Federal Trade Commission v. Cement Institute et al., Justice Jackson disagreed with the majority's view that a basing-point pricing system constituted an illegal restraint of trade under Section 1 of Sherman Act. He argued that this case was not about price-fixing, but rather about uniform delivered pricing, which is a common and legal practice in many industries. He pointed out that there was no evidence to suggest collusion or conspiracy among cement manufacturers to fix prices at artificially high levels; instead, they were merely following an industry-wide standard for calculating delivery costs based on distance from a fixed point (the "basing point"). Furthermore, he contended that such practices could actually promote competition by enabling smaller companies to compete with larger ones on equal terms. Therefore, he believed it was inappropriate and potentially harmful for the court to intervene in these complex economic matters without clear legislative guidance or compelling evidence of anti-competitive behavior.