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
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
Product: means an alcoholic product or item associated with an alcoholic product. See Utah Code 32B-4-702
Retailer: means :
(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
(b)
an agent, officer, director, shareholder, partner, or employee of a holder described in Subsection (4)(a). See Utah Code 32B-4-702
(2)
(a)
Subsection (1) applies only to a transaction between:
(i)
one or more industry members; and
(ii)
(A)
the department; or
(B)
one or more retailers.
(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)
(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.
(b)
Examples of a contract or agreement described in Subsection (4)(a) include:
(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
(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:
(A)
requiring that the retailer purchase a product or line of products exclusively from the industry member for the period of the agreement; or
(B)
requiring that the retailer purchase a specific or minimum quantity during the period of the agreement.
(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.
(b)
This Subsection (5) applies whether a contract, agreement, or other arrangement originates with the industry member or the third party.
(c)
Examples of a contract, agreement, or other arrangement described in this Subsection (5) include:
(i)
a contract, agreement, or arrangement:
(A)
with a third party, such as a ball club or municipal or private corporation, that is not a retailer;
(B)
under which the third party leases the concession rights and is able to control the purchasing decisions of a retailer; and
(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
(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:
