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Tax Law

Going to the Dogs: Pet Food Seller’s Intelligence Gathering in Maryland Exceeds P.L. 86-272 Protection

The Maryland Court of Special Appeals upheld the Comptroller’s determination that an out-of-state pet food seller did not qualify for Public Law 86-272 protection because the seller’s collection of competitive information in Maryland by its employees was not ancillary to solicitation of sales and not de minimis. The out-of-state pet food seller maintained a limited number of employees in Maryland, including several dozen “Pet Detectives” and one Account Manager, who were responsible for encouraging customers and retailers to buy the out-of-state pet food seller’s products. These employees also engaged in various forms of quality control and provided information regarding market opportunities and competitor activities in regular reports to regional managers. The Comptroller argued, and the appellate court agreed, that such activities in Maryland exceeded the solicitation protection of P.L. 86-272, as the activities were not ancillary to the solicitation of sales. The appellate court concluded the seller’s quality control efforts were de minimis, though, with only two instances in the record of a Pet Detective either restocking or pulling bad product from retailer shelves. In contrast, the court held the gathering of competitive intelligence constituted “a nontrivial additional business activity conducted in the State of Maryland,” despite the fact that less than five percent of the employees’ reports discussed competitors and their activities. Because the “collection of competitive information was carried out on a regular basis as a continuing matter of company policy,” the court held such activity was sufficient to forfeit P.L. 86-272 immunity. Blue Buffalo Company, Ltd. v. Comptroller of the Treasury, — A.3d — (Dec. 20, 2019).