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RULE §45.120Co-Packaging of Alcoholic Beverage

(a) This section relates to Alcoholic Beverage Code §102.07(a)(5) and §108.035.

(b) As used in this section:

  (1) "Co-pack" means a package:

    (A) originally bundled and supplied by a manufacturer, distiller, brewer, rectifier, wholesaler, class B wholesaler, winery or wine bottler (or an agent, employee or servant of such);

    (B) containing an alcoholic beverage and another item;

    (C) where the package is designed to be delivered intact to the ultimate consumer; and

    (D) where the additional items have no value or benefit to the retailer other than that of having the potential of attracting purchases and promoting sales.

  (2) "Naked bottle" means an alcoholic beverage sold by a wholesaler that is similar in all regards to the alcoholic beverage contained in a co-pack sold by that wholesaler, except that it is not packaged with any other item.

(c) If any alcoholic beverage is sold to a retailer as a "co-pack", the retailer may not separate the other packaged item and sell it by any means other than the way it was originally packaged when received.

(d) In order to demonstrate that a non-alcoholic beverage item in a co-pack has no unlawful value or benefit to the retailer, a retailer must price and sell a co-pack at a cost/price differential not to exceed the cost/price differential at which the retailer prices and sells a naked bottle received from the same wholesaler.

(e) Nothing in this section shall preclude a supplier from differentiating in the price of a naked bottle and co-pack during the packaging phase of a co-pack by adding cost to the co-pack and increasing the baseline price of the co-pack.

(f) A retailer may not be forced, induced or persuaded to purchase a prescribed number of co-packs in order to purchase naked bottles, nor may a retailer be forced, induced or persuaded to purchase a prescribed number of naked bottles in order to purchase co-packs.

Source Note: The provisions of this §45.120 adopted to be effective August 1, 1994, 19 TexReg 5631; amended to be effective November 18, 2010, 35 TexReg 10048; amended to be effective October 24, 2013, 38 TexReg 7304

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