"Alcoholic liquor" means "alcoholic liquor" as
defined in Iowa Code section
123.3(5). For
the purposes of this chapter, "alcoholic liquor" includes "native distilled
spirits" as defined in Iowa Code section
123.3(34).
"Beer" means "beer" as defined in Iowa Code
section 123.3(7). For
the purposes of this chapter, "beer" includes "canned cocktail" as defined in
Iowa Code section 123.3(11) and
"high alcoholic content beer" as defined in Iowa Code section
123.3(22).
"Brand" means each alcoholic liquor, wine, or
beer packaged and sold under a separate name, class, type, or kind designation
(wine appellation of origin, wine vintage date, alcoholic liquor age,
percentage of alcohol, etc.).
"Department" means the department of
revenue.
"Equipment" includes, but is not limited to,
mechanized and nonmechanized refrigeration units and devices used in the
storage, dispensing, and cooling of alcoholic liquor, wine and beer, tap boxes,
"party wagons," dispensing systems, and shelving. Equipment does not include
tapping accessories (including faucets, rods, vents, taps, hoses, washers,
couplings, gas gauges, vent tongues, shanks, check valves and "picnic" pumps)
which are used in dispensing wine or beer from kegs or bulk packaging.
"Exclusion," in whole or in part, means a
practice by an industry member, whether direct, indirect, or through an
affiliate, that places (or has the potential to place) retailer independence at
risk by means of a tie or link between the industry member and retailer or by
any other means of industry member control over the retailer, and such practice
results in the retailer's purchasing less than it would have of a competing
industry member's product. The following criteria are indications that a
particular practice places retailer independence at risk. A practice need not
meet all of the criteria specified below in order to place retailer
independence at risk.
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 industry member
obligates the retailer to participate in a promotion to obtain the industry
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 the industry member
with respect to purchase of the industry member's products.
5. The practice involves the industry member
in the day-to-day operations of the retailer. For example, the industry member
controls the retailer's decisions on which brand of products 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.
"Fixtures" includes, but is not limited to,
bar sinks, bars, light fixtures, and indoor or outdoor signs used to identify
the retail establishment.
"Furnishings" includes, but is not limited to,
money, services, chairs, tables, lamps, pictures, remodeling costs, bar sinks,
carpeting, bar stools, display cabinets and curios, linens, linen services,
china and silver or stainless steel eating and other utensils, decorations, and
sound systems used by a retailer. (Durable and disposable glassware is
addressed in rule 185-16.5 (123).)
"Furnishings, fixtures and equipment" does not
include the items identified in rule
185-16.2 (123), subrules 16.3(1)
and 16.3(2), rule 185-16.5 (123), rule
185-16.6 (123), rule
185-16.7 (123), or paragraph
16.13(2)"a."
"Industry member" means an alcoholic beverages
manufacturer, including a distiller, vintner or brewer, bottler, importer,
wholesaler, representative, broker, agent, officer, director, shareholder not
considered an institutional investor as defined in Iowa Code section 123.3(27),
partner or employee of each of the above.
"Product" means alcoholic liquor, wine, or
beer as defined in Iowa Code chapter 123.
"Retailer" means the holder of an alcoholic
beverages license or permit, agents, officers, directors, shareholders not
considered institutional investors as defined in Iowa Code section
123.3(27),
partners, and employees who sell alcoholic liquor, wine or beer to consumers
for consumption on or off the premises of the licensee or permittee.
"Sampling" means the practice of industry
members giving product to a retailer for the purpose of market research,
education, promotion of the product, or determination of the flavor of the
product.
"Tasting" means the presentation and serving
of a product by industry members or retailers to consumers for the purpose of
market research, education, promotion of the product, or determination of the
flavor of the product.
"Trade buyer" means a person who is a
wholesaler or retailer of alcoholic liquor, wine, or beer.
"Trade spending" means the practice of
industry members promoting their brand by purchasing alcoholic beverages for
consumers where alcoholic beverages are sold and served for on-premises
consumption.
"Wine" means "wine" as defined in Iowa Code
section 123.3(53). For the purposes of this chapter, "wine" includes "native
wine" as defined in Iowa Code section 123.3(36).
This rule is intended to implement Iowa Code sections
123.45 and
123.186.
