BILL REQ. #:  S-1551.1 

Read first time 02/16/09.   Referred to Committee on Labor, Commerce & Consumer Protection.

     AN ACT Relating to the work of the joint select committee on beer and wine regulation; amending RCW 66.28.180; adding new sections to chapter 66.28 RCW; creating a new section; and repealing RCW 66.28.010.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   A new section is added to chapter 66.28 RCW to read as follows:
     INTENT. The legislature recognizes that Washington's current three-tier system, where the functions of manufacturing, distributing, and retailing are distinct and the financial relationships and business transactions between entities in these tiers are regulated, is a valuable system for the distribution of beer and wine. The legislature further recognizes that the historical total prohibition on ownership of an interest in one tier by a person with an ownership interest in another tier, as well as the historical restriction on financial incentives and business relationships between tiers, is unduly restrictive. The legislature finds the modifications contained in this act are appropriate, so long as the modifications do not impermissibly interfere with the goals of orderly marketing of alcohol in the state, encouraging moderation in consumption of alcohol by the citizens of the state, protecting the public interest and advancing public safety by preventing the use and consumption of alcohol by minors and other abusive consumption, and promoting the efficient collection of taxes by the state.

NEW SECTION.  Sec. 2   A new section is added to chapter 66.28 RCW to read as follows:
     DEFINITIONS. The definitions in this section apply throughout sections 1 through 6 of this act unless the context clearly requires otherwise.
     (1) "Adverse impact on public health and safety" means a determination by the board that the practice or proposed practice has or will result in alcohol being made more attractive or available to minors than would otherwise be the case or has or will result in overconsumption, consumption by minors, or other harmful or abusive forms of consumption.
     (2) "Affiliate" means any one of two or more persons if one of those persons has actual or legal control, directly or indirectly, whether by stock ownership or otherwise, of the other person or persons and any one of two or more persons subject to common control, actual or legal, directly or indirectly, whether by stock ownership or otherwise.
     (3) "Industry member" means a licensed manufacturer, producer, supplier, importer, wholesaler, distributor, authorized representative, certificate of approval holder, warehouse, and any affiliates, subsidiaries, officers, directors, partners, agents, employees, and representatives of any industry member. "Industry member" does not include the board or any of the board's employees.
     (4) "Person" means any individual, partnership, joint stock company, business trust, association, corporation, or other form of business enterprise, including a receiver, trustee, or liquidating agent and includes any officer or employee of a retailer or industry member.
     (5) "Retailer" means the holder of a license issued by the board to allow for the sale of alcoholic beverages to consumers for consumption on or off premises and any of the retailer's agents, officers, directors, shareholders, partners, or employees. "Retailer" does not include the board or any of the board's employees.
     (6) "Undue influence over the purchasing, marketing, or sales decisions of one retailer or industry member over another industry member or retailer" means any agreement written or unwritten or any other business practices or arrangements which result directly or indirectly in circumstances including but not limited to the following:
     (a) Any form of coercion between industry members and retailers or between retailers and industry members through acts or threats of physical or economic harm, including threat of loss of supply or threat of curtailment of purchase;
     (b) A retailer on an involuntary basis purchasing less than it would have of another industry member's product;
     (c) Purchases made by a retailer or industry member as a prerequisite for purchase of other items;
     (d) A retailer purchasing a specific or minimum quantity or type of a product or products from an industry member;
     (e) An industry member requiring a retailer to take and dispose of a certain product type or quota of the industry member's products;
     (f) A retailer having a continuing obligation to purchase or otherwise promote or display an industry member's product;
     (g) An industry member having a continuing obligation to sell a product to a retailer;
     (h) A retailer having a commitment not to terminate its relationship with the industry member with respect to purchase of the industry member's products or the industry member having a commitment not to terminate its relationship with a retailer with respect to the sale of a particular product or products;
     (i) An industry member being involved in the day-to-day operations of the retailer or the retailer being involved in the day-to-day operations of the industry member in a manner that violates the provisions of this section;
     (j) Discriminatory pricing practices as prohibited by law or other practices that are discriminatory if that product is not offered to all retailers in the local market on the same terms.

NEW SECTION.  Sec. 3   A new section is added to chapter 66.28 RCW to read as follows:
     LAWFUL FINANCIAL INTEREST. (1) Notwithstanding any prohibitions and restrictions contained in this title, it shall be lawful for an industry member or affiliate to have a direct or indirect financial interest in a retailer, and for a retailer or affiliate to have a direct or indirect financial interest in an industry member unless such interest has or will result in undue influence over the purchasing decisions of the retailer and/or undue influence over the marketing or sales decisions of the industry member or has or will result in an adverse impact on public health and safety.
     (2) Any industry member or retailer or any other person asserting that a proposed or existing financial interest has or will result in undue influence over purchasing, marketing, or sales decisions of a retailer or in undue influence over marketing or sales decisions of an industry member or has or will result in an adverse impact on public health and safety may file a complaint with the board. Upon receipt of a complaint the board may investigate and if the investigation reveals the practice has or will result in undue influence over purchasing, marketing, or sales decisions of a retailer or in undue influence over marketing or sales decisions of an industry member or has or will result in an adverse impact on public health and safety the board may issue an administrative violation notice to the industry member, to the retailer, or both. The recipient of the administrative notice of violation may request a hearing under chapter 34.05 RCW.
     (3) It shall be presumed any financial interest or arrangement allowed by law as of the effective date of this act, including but not limited to those financial arrangements allowed under RCW 66.28.010 as it existed on the effective date of this act, is a lawful financial interest, unless subject to a later determination the existing financial interest results in undue influence over purchasing, marketing, or sales decisions of a retailer, undue influence over marketing or sales decisions of an industry member, or has an adverse impact on public health and safety.

NEW SECTION.  Sec. 4   A new section is added to chapter 66.28 RCW to read as follows:
     MONEYS' WORTH. Except as provided in section 5 of this act, no industry member shall advance and no retailer shall receive moneys or moneys' worth under an agreement written or unwritten or by means of any other business practice or arrangement.

NEW SECTION.  Sec. 5   A new section is added to chapter 66.28 RCW to read as follows:
     EXCEPTIONS TO MONEYS' WORTH PROHIBITION. (1)(a) Nothing in section 4 of this act prohibits an industry member from providing retailers branded promotional items which are of nominal value. Items include but are not limited to: Trays, lighters, blotters, postcards, pencils, coasters, menu cards, meal checks, napkins, clocks, mugs, glasses, bottles or can openers, corkscrews, matches, printed recipes, shirts, hats, visors, and other items of similar nominal value, whether a single item or in the aggregate. Branded promotional items:
     (i) Must be used exclusively by the retailer or employees in a manner consistent with its license;
     (ii) Must bear imprinted advertising matter of the industry member only;
     (iii) May be provided by industry members only to retailers and their employees and may not be provided by or through retailers or their employees to retail customers; and
     (iv) May not be targeted to or appeal to youth.
     (b) Any industry member or retailer or any other person asserting the provision of branded promotional items as allowed in (a) of this subsection has or will result in undue influence over marketing or sales decisions of an industry member or has or will result in an adverse impact on public health and safety or is otherwise inconsistent with the criteria in (a) of this subsection may file a complaint with the board. Upon receipt of a complaint the board may investigate and if the investigation reveals the provision of branded promotional items has or will result in an undue influence over marketing or sales decisions of an industry member or has or will result in an adverse impact on public health and safety or is otherwise inconsistent with (a) of this subsection the board may issue an administrative violation notice to the industry member, to the retailer, or both. The recipient of the administrative violation notice may request a hearing under chapter 34.05 RCW.
     (2) Nothing in section 4 of this act prohibits an industry member from providing to a special occasion licensee and a special occasion licensee from receiving services for:
     (a) Installation of draft beer dispensing equipment or advertising; or
     (b) Advertising, pouring, or dispensing of beer or wine at a beer or wine tasting exhibition or judging event.
     (3) Nothing in sections 1 through 6 of this act prohibit industry members from performing, and retailers from accepting the service of building, rotating, and restocking displays and stockroom inventories; rotating and rearranging can and bottle displays of their own products; providing point of sale material and brand signs; pricing case goods of their own brands; and performing such similar business services consistent with board rules.
     (4) Nothing in section 4 of this act prohibits:
     (a) Industry members from listing on their internet web sites information related to retailers who sell or promote their products, including direct links to the retailers' internet web sites; and
     (b) Retailers from listing on their internet web sites information related to industry members whose products those retailers sell or promote, including direct links to the industry members' web sites; or
     (c) Industry members and retailers from producing, jointly or together with regional, state, or local industry associations, brochures and materials promoting tourism in Washington state which contain information regarding retail licensees, industry members, and their products.
     (5) Nothing in section 4 of this act prohibits the performance of personal services offered from time to time by a domestic winery or certificate of approval holder to retailers when the personal services are (a) conducted at a licensed premises, and (b) intended to inform, educate, or enhance customers' knowledge or experience of the manufacturer's products. The performance of personal services may include participation and pouring, bottle signing events, and other similar informational or educational activities at the premises of a retailer holding a spirits, beer, and wine restaurant license, a wine and/or beer restaurant license, a specialty wine shop license, a special occasion license, or a private club license. A domestic winery or certificate of approval holder is not obligated to perform any such personal services, and a retail licensee may not require a domestic winery or certificate of approval holder to conduct any personal service as a condition for selling any alcohol to the retail licensee. Except as provided in RCW 66.28.150, the cost of sampling may not be borne, directly or indirectly, by any domestic winery or certificate of approval holder. Nothing in this section prohibits wineries, certificate of approval holders, and retail licensees from identifying the producers on private labels authorized under RCW 66.24.400, 66.24.425, and 66.24.450.
     (6) An industry member may enter into an arrangement with any holder of a sports entertainment facility license or an affiliated business for brand advertising at the licensed facility or promoting events held at the sports entertainment facility as authorized under RCW 66.24.570.

NEW SECTION.  Sec. 6   A new section is added to chapter 66.28 RCW to read as follows:
     All industry members and retailers shall keep and maintain the following records on their premises for a three-year period:
     (1) Records of all items, services, and things of value furnished to and received by a retailer and of all items, services, and things of value provided to a retailer and purchased by a retailer at fair market value; and
     (2) Records of all industry member financial ownership interests in a retailer and of all retailer financial ownership interests in an industry member.

Sec. 7   RCW 66.28.180 and 2006 c 302 s 10 are each amended to read as follows:
     ((It is unlawful for a person, firm, or corporation holding a certificate of approval issued under RCW 66.24.270 or 66.24.206, a beer distributor's license, a domestic brewery license, a microbrewery license, a beer importer's license, a beer distributor's license, a domestic winery license, a wine importer's license, or a wine distributor's license within the state of Washington to modify any prices without prior notification to and approval of the board.
     (1) Intent. This section is enacted, pursuant to the authority of this state under the twenty-first amendment to the United States Constitution, to promote the public's interest in fostering the orderly and responsible distribution of malt beverages and wine towards effective control of consumption; to promote the fair and efficient three-tier system of distribution of such beverages; and to confirm existing board rules as the clear expression of state policy to regulate the manner of selling and pricing of wine and malt beverages by licensed suppliers and distributors.
     (2))) (1) Beer and wine distributors ((price posting)).
     (a) Every beer or wine distributor shall ((file with the board at its office in Olympia)) maintain at their liquor licensed location a price ((posting)) list showing the wholesale prices at which any and all brands of beer and wine sold by such beer and/or wine distributor shall be sold to retailers within the state.
     (b) Each price ((posting shall be made on a form prepared and furnished by the board, or a reasonable facsimile thereof, and)) list shall set forth:
     (i) All brands, types, packages, and containers of beer offered for sale by such beer and/or wine distributor;
     (ii) The wholesale prices thereof to retail licensees, including allowances, if any, for returned empty containers.
     (c) No beer and/or wine distributor may sell or offer to sell any package or container of beer or wine to any retail licensee at a price differing from the price for such package or container as shown in the price ((posting filed by the beer and/or wine distributor and then in effect)) list, according to rules adopted by the board.
     (d) Quantity discounts are prohibited. No price may be ((posted that is)) below acquisition cost ((plus ten percent of acquisition cost. However, the board is empowered to review periodically, as it may deem appropriate, the amount of the percentage of acquisition cost as a minimum mark-up over cost and to modify such percentage by rule of the board, except such percentage shall be not less than ten percent)).
     (e) Distributor prices on a "close-out" item shall be ((accepted by the board)) allowed if the item to be discontinued has been listed ((on the state market)) for a period of at least six months, and upon the further condition that the distributor who ((posts)) offers such a close-out price shall not restock the item for a period of one year following the first effective date of such close-out price.
     (f) ((The board may reject any price posting that it deems to be in violation of this section or any rule, or portion thereof, or that would tend to disrupt the orderly sale and distribution of beer and wine. Whenever the board rejects any posting, the licensee submitting the posting may be heard by the board and shall have the burden of showing that the posting is not in violation of this section or a rule or does not tend to disrupt the orderly sale and distribution of beer and wine. If the posting is accepted, it shall become effective at the time fixed by the board. If the posting is rejected, the last effective posting shall remain in effect until such time as an amended posting is filed and approved, in accordance with the provisions of this section.
     (g) Prior to the effective date of the posted prices, all price postings filed as required by this section constitute investigative information and shall not be subject to disclosure, pursuant to RCW 42.56.240(1).
     (h))) Any beer and/or wine distributor or employee authorized by the distributor-employer may sell beer and/or wine at the distributor's posted prices to any annual or special occasion retail licensee upon presentation to the distributor or employee at the time of purchase of a special permit issued by the board to such licensee.
     (i) Every annual or special occasion retail licensee, upon purchasing any beer and/or wine from a distributor, shall immediately cause such beer or wine to be delivered to the licensed premises, and the licensee shall not thereafter permit such beer to be disposed of in any manner except as authorized by the license.
     (ii) Beer and wine sold as provided in this section shall be delivered by the distributor or an authorized employee either to the retailer's licensed premises or directly to the retailer at the distributor's licensed premises. When a domestic winery, brewery, microbrewery, or certificate of approval holder with a direct shipping endorsement is acting as a distributor of its own production, a licensed retailer may contract with a common carrier to obtain the product directly from the domestic winery, brewery, microbrewery, or certificate of approval holder with a direct shipping endorsement. A distributor's prices to retail licensees shall be the same at both such places of delivery.
     (((3))) (2) Beer and wine suppliers' ((price filings,)) contracts((,)) and memoranda.
     (a) Every domestic brewery, microbrewery, and domestic winery offering beer and/or wine for sale within the state shall ((file with the board at its office in Olympia)) maintain at its liquor licensed location a copy of every written contract and a memorandum of every oral agreement which such brewery or winery may have with any beer or wine distributor, which contracts or memoranda shall contain:
     (i) A schedule of prices charged to distributors for all items and all terms of sale, including all regular and special discounts;
     (ii) All advertising, sales and trade allowances, and incentive programs; and
     (iii) All commissions, bonuses or gifts, and any and all other discounts or allowances.
     (b) Whenever changed or modified, such revised contracts or memoranda shall ((forthwith)) also be ((filed with the board as provided for by rule)) maintained at its liquor licensed location. The provisions of this section also apply to certificate of approval holders, beer and/or wine importers, and beer and/or wine distributors who sell to other beer and/or wine distributors.
     (c) Each price ((schedule shall be made on a form prepared and furnished by the board, or a reasonable facsimile thereof, and)) list shall set forth all brands, types, packages, and containers of beer or wine offered for sale by such licensed brewery or winery((; all additional information required may be filed as a supplement to the price schedule forms)).
     (((b))) (d) Prices ((filed by)) of a domestic brewery, microbrewery, domestic winery, or certificate of approval holder shall be uniform prices to all distributors or retailers on a statewide basis less bona fide allowances for freight differentials. Quantity discounts are prohibited. No price shall be ((filed that is)) below acquisition/production cost ((plus ten percent of that cost, except that acquisition cost plus ten percent of acquisition cost does not apply to sales of beer or wine between a beer or wine importer who sells beer or wine to another beer or wine importer or to a beer or wine distributor, or to a beer or wine distributor who sells beer or wine to another beer or wine distributor. However, the board is empowered to review periodically, as it may deem appropriate, the amount of the percentage of acquisition/production cost as a minimum mark-up over cost and to modify such percentage by rule of the board, except such percentage shall be not less than ten percent)).
     (((c))) (e) No domestic brewery, microbrewery, domestic winery, certificate of approval holder, beer or wine importer, or beer or wine distributor may sell or offer to sell any beer or wine to any persons whatsoever in this state until copies of such written contracts or memoranda of such oral agreements are on file with the board.
     (((d))) (f) No domestic brewery, microbrewery, domestic winery, or certificate of approval holder may sell or offer to sell any package or container of beer or wine to any distributor at a price differing from the price list for such package or container as shown in the ((schedule of prices filed by)) price list of the domestic brewery, microbrewery, domestic winery, or certificate of approval holder and then in effect, according to rules adopted by the board.
     (((e) The board may reject any supplier's price filing, contract, or memorandum of oral agreement, or portion thereof that it deems to be in violation of this section or any rule or that would tend to disrupt the orderly sale and distribution of beer or wine. Whenever the board rejects any such price filing, contract, or memorandum, the licensee submitting the price filing, contract, or memorandum may be heard by the board and shall have the burden of showing that the price filing, contract, or memorandum is not in violation of this section or a rule or does not tend to disrupt the orderly sale and distribution of beer or wine. If the price filing, contract, or memorandum is accepted, it shall become effective at a time fixed by the board. If the price filing, contract, or memorandum, or portion thereof, is rejected, the last effective price filing, contract, or memorandum shall remain in effect until such time as an amended price filing, contract, or memorandum is filed and approved, in accordance with the provisions of this section.
     (f) Prior to the effective date of the posted prices, all prices, contracts, and memoranda filed as required by this section constitute investigative information and shall not be subject to disclosure, pursuant to RCW 42.56.240(1).))

NEW SECTION.  Sec. 8   RCW 66.28.010 (Manufacturers, importers, distributors, and authorized representatives barred from interest in retail business or location -- Advances prohibited -- "Financial interest" defined -- Exceptions) and 2008 c 94 s 5 are each repealed.

NEW SECTION.  Sec. 9   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 10   Captions used in this act are not any part of the law.