| (a) General. This section is enacted pursuant to Alcoholic
Beverage Code §§102.04, 102.07, 102.12, 102.15 and 108.06.
(b) Unless otherwise specified, this section applies
to members of the manufacturing and wholesale tiers for all alcoholic
beverages.
(c) Inducements. Notwithstanding any other provision
of these rules, practices and patterns of conduct that place retailer
independence at risk constitute an illegal inducement as that term
is used in the Alcoholic Beverage Code. Examples of unlawful inducements
are:
(1) purchasing or renting shelf, floor or warehouse
space from or for a retailer;
(2) requiring a retailer to purchase one product in
order to be allowed to purchase another product at the same time;
(3) providing or purchasing, in whole or in part, any
type of advertising benefitting any specific retailer, if the advertising
is a result of unauthorized activity;
(4) furnishing food and beverages, entertainment or
recreation to retailers or their agents or employees except under
the following conditions:
(A) the value of food, beverages, entertainment and
recreation shall not exceed $1,000.00 per person on any one occasion;
and
(B) food, beverages, entertainment and recreation provided
may only be consumed or enjoyed in the immediate presence of both
the providing upper tier member and the receiving retail tier member;
and
(C) in the course of providing food, beverages, entertainment
or recreation under this rule, upper tier members may furnish transportation;
and
(D) food, beverages, recreation and entertainment may
also be provided during attendance at a convention, conference, or
similar event so long as the primary purpose for the attendance of
the retailer at such event is not to receive benefits under this section;
and
(E) each upper tier member shall keep complete and
accurate records of all expenses incurred for retailer entertainment
for two years.
(5) furnishing of service trailers with equipment to
a retailer;
(6) furnishing transportation or other things of value
to organized groups of retailers. Members of the manufacturing and
wholesale tiers may advertise in convention programs, sponsor functions
or meetings and other participate in meetings and conventions of trade
associations of general membership; and
(7) except as otherwise allowed under §45.41 of
this chapter (relating to Additional Reasons for Denial of Registration
of a Malt Beverage Product), marking, branding or labeling a malt
beverage with:
(A) the tradename or trademark of any retailer permittee
or licensee or any private club registration permittee; or
(B) a tradename or trademark that is owned, licensed,
or exclusively used by any retailer permittee or licensee or any private
club registration permittee.
(d) Criteria for determining retailer independence.
The following criteria shall be used as a guideline in determining
whether a practice or pattern of conduct places retailer independence
at risk. The following criteria are not exclusive, nor does a practice
need to meet all criteria in order to constitute an inducement.
(1) The practice restricts or hampers the free economic
choice of a retailer to decide which products to purchase or the quantity
in which to purchase them for sale to consumers.
(2) The retailer is obligated to participate in a program
offered by a member of the manufacturing or wholesale tier in order
to obtain that member's product.
(3) The retailer has a continuing obligation to purchase
or otherwise promote the industry member's product.
(4) The retailer has a commitment not to terminate
its relationship with a member of the manufacturing or wholesale tier
with respect to purchase of that member's products.
(5) The practice involves a member of the manufacturing
or wholesale tier in the day-to-day operations of the retailer. For
example, the member controls the retailer's decisions on which brand
of product to purchase, the pricing of products, or the manner in
which the products will be displayed on the retailer's premises.
(6) The practice is discriminatory in that it is not
offered to all retailers in the local market on the same terms without
business reasons present to justify the difference in treatment.
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| Source Note: The provisions of this §45.110 adopted to be effective January 2, 1998, 22 TexReg 12750; amended to be effective December 20, 1998, 23 TexReg 12661; amended to be effective August 12, 2014, 39 TexReg 6043; amended to be effective February 14, 2022, 47 TexReg 647 |
