N.Y.
Alcoholic Beverage Control Law Section 101-B
Unlawful discriminations prohibited
- filing of schedules
- schedule listing fund
1.
It is the declared policy of the state that it is necessary to regulate and control the manufacture, sale, and distribution within the state of alcoholic beverages for the purpose of fostering and promoting temperance in their consumption and respect for and obedience to the law. In order to eliminate the undue stimulation of sales of alcoholic beverages and the practice of manufacturers and wholesalers in granting discounts, rebates, allowances, free goods, and other inducements to selected licensees, which contribute to a disorderly distribution of alcoholic beverages, and which are detrimental to the proper regulation of the liquor industry and contrary to the interests of temperance, it is hereby further declared as the policy of the state that the sale of alcoholic beverages should be subjected to certain restrictions, prohibitions and regulations. The necessity for the enactment of the provisions of this section is, therefore, declared as a matter of legislative determination.2.
It shall be unlawful for any person who sells liquors or wines to wholesalers or retailers (a) to discriminate, directly or indirectly, in price, in discounts for time of payment or in discounts on quantity of merchandise sold, between one wholesaler and another wholesaler, or between one retailer and another retailer purchasing liquor or wine bearing the same brand or trade name and of like age and quality;(b)
to grant, directly or indirectly, any discount, rebate, free goods, allowance or other inducement of any kind whatsoever, except a discount or discounts for quantity of liquor or for quantity of wine and a discount not in excess of one per centum for payment on or before ten days from date of shipment.3.
(a) No brand of liquor or wine shall be sold to or purchased by a wholesaler, irrespective of the place of sale or delivery, unless a schedule, as provided by this section, is transmitted to and received by the liquor authority, and is then in effect. Such schedule shall be transmitted to the authority in such form, manner, medium and format as the authority may direct; shall be deemed duly verified by the person submitting such schedule upon its transmission to the authority; and shall contain, with respect to each item, the exact brand or trade name, capacity of package, nature of contents, age and proof where stated on the label, the number of bottles contained in each case, the bottle and case price to wholesalers, the net bottle and case price paid by the seller, which prices, in each instance, shall be individual for each item and not in “combination” with any other item, the discounts for quantity, if any, and the discounts for time of payment, if any. Such brand of liquor or wine shall not be sold to wholesalers except at the price and discounts then in effect unless prior written permission of the authority is granted for good cause shown and for reasons not inconsistent with the purpose of this chapter. Such schedule shall be transmitted by (1) the owner of such brand, or(2)
a wholesaler selling such brand and who is designated as agent for the purpose of filing such schedule if the owner of the brand is not licensed by the authority, or(3)
with the approval of the authority, by a wholesaler, in the event that the owner of the brand is unable to transmit a schedule or designate an agent for such purpose.(b)
No brand of liquor or wine shall be sold to or purchased by a retailer unless a schedule, as provided by this section, is transmitted to and received by the liquor authority, and is then in effect. Such schedule shall be transmitted to the authority in such form, manner, medium and format as the authority may direct; shall be deemed duly verified by the person submitting such schedule upon its transmission to the authority; and shall contain, with respect to each item, the exact brand or trade name, capacity of package, nature of contents, age and proof where stated on the label, the number of bottles contained in each case, the bottle and case price to retailers, the net bottle and case price paid by the seller, which prices, in each instance, shall be individual for each item and not in “combination” with any other item, the discounts for quantity, if any, and the discounts for time of payment, if any. Such brand of liquor or wine shall not be sold to retailers except at the price and discounts then in effect unless prior written permission of the authority is granted for good cause shown and for reasons not inconsistent with the purpose of this chapter. Such schedule shall be transmitted by each manufacturer selling such brand to retailers and by each wholesaler selling such brand to retailers.(c)
Provided however, nothing contained in this section shall require any manufacturer or wholesaler to list in any schedule to be filed pursuant to this section any item offered for sale to a retailer under a brand which is owned exclusively by one retailer and sold at retail within the state exclusively by such retailer.(d)
The authority may make available the schedules in paragraphs (a) and (b) of this subdivision to all licensed wholesaler or retail establishments by way of controlled internet access.(e)
As used in this subdivision the term “item” shall be deemed to include a sealed, pre-wrapped package consisting of a sealed container or containers of liquor, wine or wine products and other merchandise reasonably used in connection with the preparation, storage, promotion, gifting, or service of liquor, wine or wine products provided that such other merchandise shall not be potable or edible; provided however that any such wine, liquor or wine products sealed or pre-wrapped in combination with other items shall also be available individually for sale. For the purposes of this section, gift and promotional items shall only include those items that are complementary and directly associated with the sale of wine or liquor they are gifting or promoting and shall mean:(1)
items that are de minimis in value, but in no instance shall merchandise be valued at more than fifteen dollars in total;(2)
items that are imprinted with the wine or liquor brand logo on the gift or promotional item; and(3)
items that are included as part of a manufactured pre-sealed package with the wine or liquor that is being gifted or promoted. Further, for the purposes of this section, gift or promotional items shall not include any food, non-alcoholic beverage, or other drink or food mix, nor shall these items be offered for sale to the general public as individual items.4.
Each such schedule required by paragraph (a) of subdivision three of this section shall be filed on or before the twenty-fifth day of each month and the prices and discounts set forth therein shall become effective on the first day of the second succeeding calendar month and shall be in effect for such second succeeding calendar month. Each such schedule required by paragraph (b) of subdivision three of this section shall be filed on or before the fifth day of each month, and the prices and discounts set forth therein shall become effective on the first day of the calendar month following the filing thereof, and shall be in effect for such calendar month. Within ten days after the filing of such schedule the authority shall make them or a composite thereof available for inspection by licensees. Within three business days after such inspection is provided for, a wholesaler may amend his filed schedule for sales to retailers in order to meet lower competing prices and discounts for liquor or wine of the same brand or trade name, and of like age and quality, filed pursuant to this section by any licensee selling such brand, provided such amended prices are not lower and discounts are not greater than those to be met. Any amended schedule so filed shall become effective on the first day of the calendar month following the filing thereof and shall be in effect for such calendar month. All schedules filed shall be subject to public inspection, from the time that they are required to be made available for inspection by licensees, and shall not be considered confidential. Each manufacturer and wholesaler shall retain in his licensed premises for inspection by licensees a copy of his filed schedules as then in effect. The liquor authority may make such rules as shall be appropriate to carry out the purpose of this section. 4-a. No licensee shall refuse to sell any brand of liquor or wine to any licensee authorized to purchase such brand of liquor or wine from such licensee at the price listed in the schedule of prices of such brand of liquor or wine required to be filed by such licensee with the authority pursuant to this section, provided the purchaser pays cash therefor, and except as herein provided.(a)
A schedule of prices to wholesalers filed by the brand owner or its agent with the authority, pursuant to this section, may limit the distribution or resale of a brand to wholesalers by the filing by the brand owner or its agent with the authority of the names, addresses and license numbers of such wholesalers. Such list shall be filed each month together with the schedule of prices, and no name shall be added thereto or removed therefrom after filing except with permission of the authority.(b)
Only those wholesalers listed, pursuant to paragraph (a) of this subdivision, may schedule the price to retailers for such brand, except that when not inconsistent with the purpose of this section, the authority may authorize any other wholesaler to schedule a price after furnishing the quantity, source of purchase and any other information the authority may require.(c)
When distribution or resale of a brand has been restricted, pursuant to paragraph (a) of this subdivision, such brand shall not be sold or purchased by any wholesalers who are not listed in accordance with paragraph (a) of this subdivision.(d)
For good cause shown to the satisfaction of the authority, permission may be granted for the filing of schedules limiting the distribution or resale of a brand to retailers.(e)
Manufacturers and wholesalers may not require or compel retailers to purchase other brands in order to be able to buy a particular brand.(f)
Nothing contained in this subdivision shall be construed as authority for permitting any conduct or activity by any brand owner or its agent or any wholesaler of liquor or wine proscribed by the antitrust laws of this state or the United States.(g)
If any provision of any paragraph of this subdivision or any subdivision of this section or the application thereof to any person or circumstance shall be adjudged invalid by a court of competent jurisdiction, such order or judgment shall be confined in its operation to the controversy in which it was rendered and shall not affect or invalidate the remainder of any provision of this subdivision or any subdivision of this section or the application of any part thereof to any other person or circumstance and to this end the provisions of each paragraph of this subdivision and each subdivision of this section are hereby declared to be severable.5.
(a) (i) Notwithstanding any other provision of law, each such schedule required by paragraph (a) of subdivision three of this section which is filed by a micro-winery, winery, or farm winery, or a class A, A-1, B, B-1, C, or D distiller shall be filed annually on or before the twenty-fifth day of November. The prices and discounts set forth therein shall become effective on the first day of the second succeeding calendar month and shall remain in effect for such twelve succeeding calendar months, unless a price change filing is made pursuant to subparagraph (ii) of this paragraph.(ii)
A micro-winery, winery, or farm winery, or a class A, A-1, B, B-1, C, or D distiller licensee may file a price schedule change at any time between the required annual filings. Each such price schedule change shall be filed on or before the twenty-fifth day of each month for a change in prices to become effective on the first day of the second succeeding calendar month and shall remain in effect until the effective date of the next filing.(b)
(i) Notwithstanding any other provision of law, each such schedule required by paragraph (b) of subdivision three of this section which is filed by a micro-winery, winery, or farm winery licensee, or a class A, A-1, B, B-1, C, or D distiller shall be filed annually on or before the fifth day of December. The prices and discounts set forth therein shall become effective on the first day of the calendar month following the filing thereof, and shall remain in effect for such twelve succeeding calendar months, unless a price change filing is made pursuant to subparagraph (ii) of this paragraph.(ii)
A micro-winery, winery, or farm winery, or a class A, A-1, B, B-1, C, or D distiller licensee may file a price schedule change at any time between the required annual filings. Each such price schedule change shall be filed on or before the fifth day of each month for a change in prices to become effective on the first day of the calendar month following the filing thereof and shall remain in effect until the effective date of the next filing.(c)
Within ten days after the filing of such schedules the authority shall make them or a composite thereof available for inspection by licensees. Within three business days after such inspection is provided for, a wholesaler may amend his filed schedule for sales to retailers in order to meet lower competing prices and discounts for wine of the same brand or trade name, and of like age and quality, filed pursuant to this section by any licensee selling such brand, provided such amended prices are not lower and discounts are not greater than those to be met. Any amended schedule so filed shall become effective on the first day of the calendar month following the filing thereof and shall be in effect until the effective date of the next filing.(d)
All schedules filed shall be subject to public inspection, from the time that they are required to be made available for inspection by licensees, and shall not be considered confidential. Each manufacturer and wholesaler shall retain in his licensed premises for inspection by licensees a copy of his filed schedules as then in effect. The liquor authority may make such rules as shall be appropriate to carry out the purpose of this subdivision.6.
For the purpose of raising the moneys necessary to defray the expenses incurred in the administration of this section, on or before the tenth day after this act becomes a law, there shall be paid to the liquor authority by each manufacturer and wholesaler licensed under this chapter to sell to retailers liquors and/or wines, a sum equivalent to fifteen per centum of the annual license fee prescribed by this chapter for each such licensee. A like sum shall be paid by each person hereafter applying for any such license or the renewal of any such license, and such sum shall accompany the application and the license fee prescribed by this chapter for such license or renewal as the case may be. In the event that any other law requires the payment of a fee by any such licensee or applicant as set forth in this section for schedule listing, then and in such event the total fee imposed by this section and such other law or laws on each such licensee shall not exceed in the aggregate a sum equivalent to fifteen per centum of the annual license fee prescribed by this chapter for such license.7.
The authority may revoke, cancel or suspend any license issued pursuant to this chapter, and may recover (as provided in § 112 (Bonds of licensees and permittees)section one hundred twelve of this chapter) the penal sum of the bond filed by a licensee, or both, for any sale or purchase in violation of any of the provisions of this section or for making a false statement in any schedule filed pursuant to this section or for failing or refusing in any manner to comply with any of the provisions of this section.
Source:
Section 101-B — Unlawful discriminations prohibited; filing of schedules; schedule listing fund, https://www.nysenate.gov/legislation/laws/ABC/101-B (updated Feb. 9, 2024; accessed Apr. 20, 2024).
