N.Y. Alcoholic Beverage Control Law § 101-b: Unlawful discriminations prohibited; filing of schedules; schedule listing fund

§ 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 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.