Utah Code 32B-4-703. Exclusive outlets
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(1) It is unlawful for an industry member, directly or indirectly, or through an affiliate, to require, by agreement or otherwise, that the department or a retailer purchase a product from the industry member or the department to the exclusion in whole or in part of a product that is sold or offered for sale by another person.
Terms Used In Utah Code 32B-4-703
- Alcoholic product: includes an alcoholic beverage. See Utah Code 32B-1-102
- Contract: A legal written agreement that becomes binding when signed.
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- Department: means the Department of Alcoholic Beverage Services created in Section
32B-2-203 . See Utah Code 32B-1-102 - exclusion: is a s defined in Utah Code 32B-4-702
- Industry member: means :(2)(a)(i) an alcoholic product manufacturer;(2)(a)(ii) a producer;(2)(a)(iii) a supplier;(2)(a)(iv) an importer;(2)(a)(v) a wholesaler;(2)(a)(vi) a bottler;(2)(a)(vii) a warehouser and bottler; or(2)(a)(viii) for a person described in Subsections (2)(a)(i) through (vii), any of its:(2)(a)(viii)(A) affiliates;(2)(a)(viii)(B) subsidiaries;(2)(a)(viii)(C) officers;(2)(a)(viii)(D) directors;(2)(a)(viii)(E) partners;(2)(a)(viii)(F) agents;(2)(a)(viii)(G) employees; or(2)(a)(viii)(H) representatives. See Utah Code 32B-4-702
- Member: means an individual who, after paying regular dues, has full privileges in an equity licensee or fraternal licensee. See Utah Code 32B-1-102
- Person: means :(24)(a) an individual;(24)(b) an association;(24)(c) an institution;(24)(d) a corporation;(24)(e) a company;(24)(f) a trust;(24)(g) a limited liability company;(24)(h) a partnership;(24)(i) a political subdivision;(24)(j) a government office, department, division, bureau, or other body of government; and(24)(k) any other organization or entity. See Utah Code 68-3-12.5
- Product: means an alcoholic product or item associated with an alcoholic product. See Utah Code 32B-4-702
- Retailer: means :(4)(a) the holder of a license or permit issued by the commission or by a local authority to allow the holder to engage in the sale of an alcoholic product to a patron whether for consumption on or off the premises; or(4)(b) an agent, officer, director, shareholder, partner, or employee of a holder described in Subsection (4)(a). See Utah Code 32B-4-702
(2)
(2)(a) Subsection (1) applies only to a transaction between:
(2)(a)(i) one or more industry members; and
(2)(a)(ii)
(2)(a)(ii)(A) the department; or
(2)(a)(ii)(B) one or more retailers.
(2)(b) Subsection (1) does not apply to a transaction between two or more industry members, including between a manufacturer and a wholesaler.
(3) Subsection (1) includes purchases coerced by an industry member through an act or threat of physical or economic harm, as well as through a voluntary industry member-retailer purchase agreement.
(4)
(4)(a) Subsection (1) includes a contract or agreement, written or unwritten, that has the effect of requiring the department or retailer to purchase an alcoholic product from the industry member beyond a single sales transaction.
(4)(b) Examples of a contract or agreement described in Subsection (4)(a) include:
(4)(b)(i) an advertising contract between an industry member and a retailer with the express or implied requirement of the purchase of the advertiser’s product; or
(4)(b)(ii) a sales contract awarded on a competitive bid basis that has the effect of prohibiting the department or retailer from purchasing from another industry member by:
(4)(b)(ii)(A) requiring that the retailer purchase a product or line of products exclusively from the industry member for the period of the agreement; or
(4)(b)(ii)(B) requiring that the retailer purchase a specific or minimum quantity during the period of the agreement.
(5)
(5)(a) Subsection (1) includes a contract, agreement, or other arrangement between an industry member and a third party nonretailer that requires the department or a retailer to purchase the industry member’s product to the exclusion in whole or in part of a product sold or offered for sale by another person.
(5)(b) This Subsection (5) applies whether a contract, agreement, or other arrangement originates with the industry member or the third party.
(5)(c) Examples of a contract, agreement, or other arrangement described in this Subsection (5) include:
(5)(c)(i) a contract, agreement, or arrangement:
(5)(c)(i)(A) with a third party, such as a ball club or municipal or private corporation, that is not a retailer;
(5)(c)(i)(B) under which the third party leases the concession rights and is able to control the purchasing decisions of a retailer; and
(5)(c)(i)(C) that requires the retailer to purchase the industry member’s product to the exclusion in whole or in part of a product sold or offered for sale by another person; or
(5)(c)(ii) a contract, agreement, or arrangement with a third party nonretailer that requires a retailer to purchase the industry member’s product to the exclusion in whole or in part of a product sold or offered for sale by another person in return for which the third party provides a service or other thing of value such as:
(5)(c)(ii)(A) sponsoring radio or television broadcasting;
(5)(c)(ii)(B) paying for advertising; or
(5)(c)(ii)(C) providing other services or things of value.