83R9568 JAM-D

By: Smith H.B. No. 2084

A BILL TO BE ENTITLED

AN ACT

relating to marketing items provided by manufacturers, wholesalers, and distributors of alcoholic beverages to retailers or consumers.

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

SECTION 1. Section 102.04(b), Alcoholic Beverage Code, is amended to read as follows:

(b) Except as permitted in Section 23.01 or 108.035 [of this code], no person to whom this section applies may:

(1) have a direct or indirect interest in the business, premises, equipment, or fixtures of a mixed beverage establishment;

(2) furnish or lend any money, service, or other thing of value to a mixed beverage permittee or guarantee the fulfillment of a financial obligation of a mixed beverage permittee;

(3) enter or offer to enter into an agreement, condition, or system which in effect amounts to the shipment and delivery of alcoholic beverages on consignment;

(4) furnish, rent, lend, or sell to a mixed beverage permittee any equipment, fixtures, or supplies used in the selling or dispensing of alcoholic beverages;

(5) pay or make an allowance to a mixed beverage permittee for a special advertising or distributing service, or allow the permittee an excessive discount;

(6) offer to a mixed beverage permittee a prize, premium, or other inducement[, except as permitted by Section 102.07(b) of this code]; or

(7) advertise in the convention program or sponsor a function at a meeting or convention or a trade association of holders of mixed beverage permits, unless the trade association was incorporated before 1950.

SECTION 2. Sections 102.07(a) and (d), Alcoholic Beverage Code, are amended to read as follows:

(a) Except as provided in Subsections [(b),] (d)[,] and (g) and Section 108.035, no person who owns or has an interest in the business of a distiller, brewer, rectifier, wholesaler, class B wholesaler, winery, or wine bottler, nor the agent, servant, or employee of such a person, may:

(1) own or have a direct or indirect interest in the business, premises, equipment, or fixtures of a retailer;

(2) furnish, give, or lend any money, service, or thing of value to a retailer;

(3) guarantee a financial obligation of a retailer;

(4) make or offer to enter an agreement, condition, or system which will in effect amount to the shipment and delivery of alcoholic beverages on consignment;

(5) furnish, give, rent, lend, or sell to a retail dealer any equipment, fixtures, or supplies to be used in selling or dispensing alcoholic beverages[, except that alcoholic beverages may be packaged in combination with other items if the package is designed to be delivered intact to the ultimate consumer and the additional items have no value or benefit to the retailer other than that of having the potential of attracting purchases and promoting sales];

(6) pay or make an allowance to a retailer for a special advertising or distribution service;

(7) allow an excessive discount to a retailer; or

(8) offer a prize, premium, gift, or similar inducement to a retailer or to the agent, servant, or employee of a retailer.

(d) [A permittee covered under Subsection (a) may offer prizes, premiums, or gifts to a consumer.] The use of rebates or coupons redeemable by the public for the purchase of alcoholic beverages is prohibited. The holder of a winery permit may furnish to a retailer without cost recipes, recipe books, book matches, cocktail napkins, or other advertising items showing the name of the winery furnishing the items or the brand name of the product advertised if the individual cost of the items does not exceed $1.

SECTION 3. Subchapter A, Chapter 108, Alcoholic Beverage Code, is amended by adding Section 108.035 to read as follows:

Sec. 108.035. CERTAIN MARKETING ITEMS OF LIMITED VALUE AUTHORIZED. (a) Notwithstanding any other provision of this code, a person who holds a brewer's permit, nonresident brewer's permit, distiller's and rectifier's permit, winery permit, wine bottler's permit, wholesaler's permit, general class B wholesaler's permit, manufacturer's license, nonresident manufacturer's license, or general distributor's license, or the agent or employee of the person, may:

(1) offer to consumers branded prizes, premiums, or gifts, including novelty items, that:

(A) are designed to advertise or promote a specific product or brand;

(B) have a limited value, which the commission may establish by rule; and

(C) are not prohibited by Section 102.07(d);

(2) package alcoholic beverages in combination with other items if the package is designed to be delivered intact to the ultimate consumer and the additional items are branded and have no value or benefit to the retailer other than that of having the potential of attracting purchases and promoting sales; and

(3) provide a retailer with branded advertising specialties designed to advertise or promote a specific product or brand, the value of which may not exceed $101 per retailer, per brand, per calendar year.

(b) Persons authorized to provide advertising specialties under Subsection (a)(3) may not pool or combine their dollar limitations to provide a retailer with advertising specialties valued in excess of the maximum permitted by that subdivision.

(c) Not more than once a year, the administrator on the administrator's own motion or on the motion of a permittee or licensee may increase or decrease the total amount of advertising specialties permitted under Subsection (a)(3) by not more than six percent based on the consumer price index and previous adjustments, if any. For the purposes of this subsection, "consumer price index" means the annual average over a calendar year of the consumer price index (all items, United States city average) published monthly by the Bureau of Labor Statistics, United States Department of Labor, or its successor in function.

SECTION 4. Section 108.06, Alcoholic Beverage Code, is amended to read as follows:

Sec. 108.06. PRIZES AND PREMIUMS. No manufacturer or distributor, directly or indirectly, or through a subsidiary, affiliate, agent, employee, officer, director, or firm member, may offer a prize, premium, gift, or other inducement to a retailer [dealer in or consumer of brewery products].

SECTION 5. Section 102.07(b), Alcoholic Beverage Code, is repealed.

SECTION 6. This Act takes effect September 1, 2013.