Section 45.110 - Inducements(a) General. This section is enacted pursuant to Alcoholic Beverage Code §§ RSA 102.04, RSA 102.07, RSA 102.12, RSA 102.15 and RSA 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 § RSA 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.16 Tex. Admin. Code § 45.110
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 by Texas Register, Volume 47, Number 06, February 11, 2022, TexReg 647, eff. 2/14/2022