IN
Indiana House Bill HB1109

Indiana 2022 Regular Session

Indiana House Bill HB1109 Compare Versions

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1-*HB1109.2*
2-Reprinted
3-January 28, 2022
1+*HB1109.1*
2+January 20, 2022
43 HOUSE BILL No. 1109
54 _____
6-DIGEST OF HB 1109 (Updated January 27, 2022 3:12 pm - DI 144)
7-Citations Affected: IC 24-5.
5+DIGEST OF HB 1109 (Updated January 20, 2022 8:09 am - DI 140)
6+Citations Affected: IC 4-6; IC 24-5.
87 Synopsis: Wholesale pricing of nonalcoholic beverages. Prohibits,
98 with certain exceptions, a supplier of nonalcoholic packaged beverages
10-(supplier) from discriminating among retailers as to a delivery method,
11-price, discount, allowance, or service charge. Specifies restrictions
12-concerning: (1) a distribution agreement to which a supplier is a party;
13-(2) means of delivery; (3) communication by a supplier; and (4) the
14-purchase and sale of beverages from one retailer to another.
9+(supplier) from discriminating among retailers as to sales price,
10+discounts, allowances, or service charges. Provides that the supplier's
11+discrimination is an unconscionable act under the deceptive consumer
12+sales law. Provides that the consumer protection division of the office
13+of the attorney general may request a court to: (1) enjoin the
14+unconscionable act on behalf of identified retailers; (2) award the state
15+a civil penalty equal to twice the amount of the price difference
16+between two retailers; and (3) award an identified retailer twice the
17+amount of the price difference between two retailers plus the retailer's
18+attorney's fees.
1519 Effective: July 1, 2022.
16-Soliday, Steuerwald, Lehman,
17-Hatcher
20+Soliday, Steuerwald, Lehman
1821 January 4, 2022, read first time and referred to Committee on Commerce, Small Business
1922 and Economic Development.
2023 January 20, 2022, reported — Do Pass.
21-January 27, 2022, read second time, amended, ordered engrossed.
22-HB 1109—LS 6761/DI 92 Reprinted
23-January 28, 2022
24+HB 1109—LS 6761/DI 92 January 20, 2022
2425 Second Regular Session of the 122nd General Assembly (2022)
2526 PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
2627 Constitution) is being amended, the text of the existing provision will appear in this style type,
2728 additions will appear in this style type, and deletions will appear in this style type.
2829 Additions: Whenever a new statutory provision is being enacted (or a new constitutional
2930 provision adopted), the text of the new provision will appear in this style type. Also, the
3031 word NEW will appear in that style type in the introductory clause of each SECTION that adds
3132 a new provision to the Indiana Code or the Indiana Constitution.
3233 Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts
3334 between statutes enacted by the 2021 Regular Session of the General Assembly.
3435 HOUSE BILL No. 1109
3536 A BILL FOR AN ACT to amend the Indiana Code concerning trade
3637 regulation.
3738 Be it enacted by the General Assembly of the State of Indiana:
38-1 SECTION 1. IC 24-5-0.5-11 IS ADDED TO THE INDIANA CODE
39-2 AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
40-3 1, 2022]: Sec. 11. (a) This section applies only to transactions
41-4 concerning the sale of nonalcoholic packaged beverages. This
42-5 section does not apply to a transaction concerning the sale of
43-6 alcoholic beverages conducted by licensees under IC 7.1.
44-7 (b) As used in this section, "beverage" means a nonalcoholic
45-8 packaged beverage.
46-9 (c) As used in this section, "nonalcoholic packaged beverage"
47-10 means a packaged beverage product that:
48-11 (1) is not an alcoholic beverage (as defined in IC 7.1-1-3-5);
49-12 (2) has a volume of at least eight (8) fluid ounces; and
50-13 (3) is enclosed in a container or wrapped in any manner in
51-14 advance of the sale of the product at wholesale or retail.
52-15 (d) As used in this section, "retailer" means a person, and any
53-16 entity affiliated and under common control with the person, that
54-17 engages in the business of selling tangible personal property to
39+1 SECTION 1. IC 4-6-9-4, AS AMENDED BY P.L.215-2016,
40+2 SECTION 48, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
41+3 JULY 1, 2022]: Sec. 4. (a) The division has the following powers and
42+4 duties:
43+5 (1) The power to investigate any written consumer complaint
44+6 made by a nonmerchant arising from a transaction between a
45+7 merchant as defined in the Uniform Commercial Code and a
46+8 nonmerchant concerning sales, leases, assignments, awards by
47+9 chance, or other dispositions of goods, services, or repairs, and
48+10 intangibles to a person for purposes that are primarily personal,
49+11 familial, household, charitable, or agricultural, or a solicitation to
50+12 supply any of the above things. When a consumer trades in or
51+13 sells a motor vehicle to another consumer or nonconsumer, the
52+14 consumer shall be considered to be a nonconsumer and shall be
53+15 subject to the provisions of this chapter. The division shall have
54+16 no jurisdiction over matters concerning utilities subject to
55+17 regulation by the utility regulatory commission or by an agency of
5556 HB 1109—LS 6761/DI 92 2
56-1 consumers. For purposes of this section, "retailer" does not include
57-2 a supplier.
58-3 (e) For purposes of this section, "supplier" means a supplier:
59-4 (1) in a sale of beverages, contract to sell beverages, or
60-5 franchise agreement to sell beverages; and
61-6 (2) whose gross revenues are at least eighty percent (80%)
62-7 comprised from supplying nonalcoholic packaged beverages.
63-8 For purposes of this section, the term does not include a retailer or
64-9 a supplier that primarily supplies dairy products.
65-10 (f) Except as provided in subsection (g), a supplier may not
66-11 discriminate among retailers by granting a delivery method, price,
67-12 discount, allowance, or service charge that is not available to all
68-13 retailers at the same time.
69-14 (g) A supplier may only charge a retailer a price for a beverage
70-15 that is different than the price the supplier charges another retailer
71-16 in one (1) or more of the following circumstances:
72-17 (1) The supplier charges the retailer a volume based discount
73-18 price that is based on a volume of not more than one (1)
74-19 semitrailer (as defined in IC 9-13-2-164) load delivered to a
75-20 single location of the retailer per stock keeping unit of the
76-beverage not offered to other retailers.21
77-22 (2) The supplier charges the retailer a higher price for the
78-23 beverages based only on a greater cost to the supplier to
79-24 deliver the beverages to the retailer.
80-25 (3) The supplier charges a different price for the beverages in
81-26 response to changing conditions affecting the market for or
82-27 marketability of the beverage, including:
83-28 (A) obsolescence of seasonal beverages; or
84-29 (B) distressed sales in anticipation of discontinuance of
85-30 business in beverages.
86-31 (4) The supplier and retailer enter an exclusive agreement in
87-32 which the retailer promises not to deal with other suppliers.
88-33 (h) A supplier, franchise, or other distribution agreement to
89-34 which a supplier is a party may not include an agreement that
90-35 prohibits the disclosure of the prices, discounts, allowances, or
91-36 service charges to a retailer.
92-37 (i) If a retailer or the retailer's designated wholesaler is capable
93-38 of receiving delivery of the beverages by a certain means of
94-39 delivery, a supplier must offer the retailer, directly or through the
95-40 retailer's designated wholesaler, the choice to receive the beverages
96-41 by that means of delivery.
97-42 (j) A supplier of nonalcoholic beverages is prohibited from
57+1 the United States except that the provisions of subdivision (5) (6)
58+2 shall apply and except as provided in IC 8-1-29.
59+3 (2) The power to receive, investigate, and prosecute any
60+4 written complaints made by a retailer arising from a
61+5 transaction between a retailer and a supplier concerning
62+6 nonalcoholic packaged beverages under IC 24-5-0.5-11.
63+7 (2) (3) For complaints filed after August 31, 1984, the duty to
64+8 ascertain from the consumer whether the consumer consents to
65+9 public disclosure by the division of the filing of the complaint,
66+10 including the consumer's identity and telephone number, if any.
67+11 (3) (4) The duty to notify the merchant of the nature of the
68+12 complaint by written communication and request a written reply.
69+13 (4) (5) Upon receipt of reply, the duty to act as mediator between
70+14 the parties and attempt to resolve all complaints in a conciliatory
71+15 manner. The director of the division and the attorney general have
72+16 discretion whether to mediate complaints involving a de minimis
73+17 amount of money.
74+18 (5) (6) If no reply is received or if the parties are unable to resolve
75+19 their differences, and no violation of federal or state statute or rule
76+20 is indicated, the duty to provide the complainant with a copy of all
77+21 correspondence relating to the matter.
78+22 (6) (7) Whenever a violation of a state or federal law or
79+23 administrative rule is indicated, the duty to forward to the
80+24 appropriate state or federal agency a copy of the correspondence
81+25 and request that the agency further investigate the complaint and
82+26 report to the division upon the disposition of the complaint.
83+27 (7) (8) The power to initiate and prosecute civil actions on behalf
84+28 of the state whenever an agency to which a complaint has been
85+29 forwarded fails to act upon the complaint within ten (10) working
86+30 days after its referral, or whenever no state agency has jurisdiction
87+31 over the subject matter of the complaint.
88+32 (b) All complaints and correspondence in the possession of the
89+33 division under this chapter are confidential unless disclosure of a
90+34 complaint or correspondence is:
91+35 (1) requested by the person who filed the complaint;
92+36 (2) consented to, in whole or in part, after August 31, 1984, by the
93+37 person who filed the complaint;
94+38 (3) in furtherance of an investigation by a law enforcement
95+39 agency; or
96+40 (4) necessary for the filing of an action by the attorney general
97+41 under IC 24-5-0.5.
98+42 (c) Notwithstanding subsection (b), the division may publicly
9899 HB 1109—LS 6761/DI 92 3
99-1 engaging in any communication, in any form either directly or
100-2 indirectly, that instructs, encourages, discourages, threatens, or
101-3 otherwise influences a retailer to stop selling nonalcoholic
102-4 beverages to a specific consumer or other retailer, or group of
103-5 consumers or other retailers.
104-6 (k) A supplier may not limit the quantity of beverages that may
105-7 be bought by one (1) retailer and sold to another retailer.
100+1 disclose information relating to the status of complaints under
101+2 subsection (a)(3), (a)(4), (a)(5), (a)(6), and (a)(7), and (a)(8).
102+3 (d) Except for a residential telephone number published in the most
103+4 recent quarterly telephone sales solicitation listing by the division
104+5 under IC 24-4.7-3 and except as provided in subsection (e), all
105+6 consumer information provided for the purposes of registering for or
106+7 maintaining the no telephone sales solicitation listing is confidential.
107+8 (e) The name, address, and telephone number of a registrant of the
108+9 most recent quarterly no telephone sales solicitation listing may be
109+10 released for journalistic purposes if the registrant consents to the
110+11 release of information after June 30, 2007.
111+12 SECTION 2. IC 24-5-0.5-4, AS AMENDED BY P.L.156-2020,
112+13 SECTION 88, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
113+14 JULY 1, 2022]: Sec. 4. (a) A person relying upon an uncured or
114+15 incurable deceptive act may bring an action for the damages actually
115+16 suffered as a consumer as a result of the deceptive act or five hundred
116+17 dollars ($500), whichever is greater. The court may increase damages
117+18 for a willful deceptive act in an amount that does not exceed the greater
118+19 of:
119+20 (1) three (3) times the actual damages of the consumer suffering
120+21 the loss; or
121+22 (2) one thousand dollars ($1,000).
122+23 Except as provided in subsection (j), the court may award reasonable
123+24 attorney fees to the party that prevails in an action under this
124+25 subsection. This subsection does not apply to a consumer transaction
125+26 in real property, including a claim or action involving a construction
126+27 defect (as defined in IC 32-27-3-1(5)) brought against a construction
127+28 professional (as defined in IC 32-27-3-1(4)), except for purchases of
128+29 time shares and camping club memberships. This subsection does not
129+30 apply with respect to a deceptive act described in section 3(b)(20) of
130+31 this chapter. This subsection also does not apply to a violation of
131+32 IC 24-4.7, IC 24-5-12, IC 24-5-14, or IC 24-5-14.5. Actual damages
132+33 awarded to a person under this section have priority over any civil
133+34 penalty imposed under this chapter.
134+35 (b) Any person who is entitled to bring an action under subsection
135+36 (a) on the person's own behalf against a supplier for damages for a
136+37 deceptive act may bring a class action against such supplier on behalf
137+38 of any class of persons of which that person is a member and which has
138+39 been damaged by such deceptive act, subject to and under the Indiana
139+40 Rules of Trial Procedure governing class actions, except as herein
140+41 expressly provided. Except as provided in subsection (j), the court may
141+42 award reasonable attorney fees to the party that prevails in a class
106142 HB 1109—LS 6761/DI 92 4
143+1 action under this subsection, provided that such fee shall be determined
144+2 by the amount of time reasonably expended by the attorney and not by
145+3 the amount of the judgment, although the contingency of the fee may
146+4 be considered. Except in the case of an extension of time granted by the
147+5 attorney general under IC 24-10-2-2(b) in an action subject to IC 24-10,
148+6 any money or other property recovered in a class action under this
149+7 subsection which cannot, with due diligence, be restored to consumers
150+8 within one (1) year after the judgment becomes final shall be returned
151+9 to the party depositing the same. This subsection does not apply to a
152+10 consumer transaction in real property, except for purchases of time
153+11 shares and camping club memberships. This subsection does not apply
154+12 with respect to a deceptive act described in section 3(b)(20) of this
155+13 chapter. Actual damages awarded to a class have priority over any civil
156+14 penalty imposed under this chapter.
157+15 (c) The attorney general may bring an action to enjoin a deceptive
158+16 act, including a deceptive act described in section 3(b)(20) of this
159+17 chapter, notwithstanding subsections (a) and (b). However, the attorney
160+18 general may seek to enjoin patterns of incurable deceptive acts with
161+19 respect to consumer transactions in real property. In addition, the court
162+20 may:
163+21 (1) issue an injunction;
164+22 (2) order the supplier to make payment of the money unlawfully
165+23 received from the aggrieved consumers to be held in escrow for
166+24 distribution to aggrieved consumers;
167+25 (3) for a knowing violation against a senior consumer, increase
168+26 the amount of restitution ordered under subdivision (2) in any
169+27 amount up to three (3) times the amount of damages incurred or
170+28 value of property or assets lost;
171+29 (4) order the supplier to pay to the state the reasonable costs of
172+30 the attorney general's investigation and prosecution related to the
173+31 action;
174+32 (5) provide for the appointment of a receiver; and
175+33 (6) order the department of state revenue to suspend the supplier's
176+34 registered retail merchant certificate, subject to the requirements
177+35 and prohibitions contained in IC 6-2.5-8-7(i), if the court finds
178+36 that a violation of this chapter involved the sale or solicited sale
179+37 of a synthetic drug (as defined in IC 35-31.5-2-321), a synthetic
180+38 drug lookalike substance (as defined in IC 35-31.5-2-321.5
181+39 (repealed)) (before July 1, 2019), a controlled substance analog
182+40 (as defined in IC 35-48-1-9.3), or a substance represented to be a
183+41 controlled substance (as described in IC 35-48-4-4.6).
184+42 (d) In an action under subsection (a), (b), or (c), the court may void
185+HB 1109—LS 6761/DI 92 5
186+1 or limit the application of contracts or clauses resulting from deceptive
187+2 acts and order restitution to be paid to aggrieved consumers.
188+3 (e) In any action under subsection (a) or (b), upon the filing of the
189+4 complaint or on the appearance of any defendant, claimant, or any
190+5 other party, or at any later time, the trial court, the supreme court, or the
191+6 court of appeals may require the plaintiff, defendant, claimant, or any
192+7 other party or parties to give security, or additional security, in such
193+8 sum as the court shall direct to pay all costs, expenses, and
194+9 disbursements that shall be awarded against that party or which that
195+10 party may be directed to pay by any interlocutory order by the final
196+11 judgment or on appeal.
197+12 (f) Any person who violates the terms of an injunction issued under
198+13 subsection (c) shall forfeit and pay to the state a civil penalty of not
199+14 more than fifteen thousand dollars ($15,000) per violation. For the
200+15 purposes of this section, the court issuing an injunction shall retain
201+16 jurisdiction, the cause shall be continued, and the attorney general
202+17 acting in the name of the state may petition for recovery of civil
203+18 penalties. Whenever the court determines that an injunction issued
204+19 under subsection (c) has been violated, the court shall award
205+20 reasonable costs to the state.
206+21 (g) If a court finds any person has knowingly violated section 3 or
207+22 10 of this chapter, other than section 3(b)(19), 3(b)(20), or 3(b)(40) of
208+23 this chapter, the attorney general, in an action pursuant to subsection
209+24 (c), may recover from the person on behalf of the state a civil penalty
210+25 of a fine not exceeding five thousand dollars ($5,000) per violation.
211+26 (h) If a court finds that a person has violated section 3(b)(19) of this
212+27 chapter, the attorney general, in an action under subsection (c), may
213+28 recover from the person on behalf of the state a civil penalty as follows:
214+29 (1) For a knowing or intentional violation, one thousand five
215+30 hundred dollars ($1,500).
216+31 (2) For a violation other than a knowing or intentional violation,
217+32 five hundred dollars ($500).
218+33 A civil penalty recovered under this subsection shall be deposited in
219+34 the consumer protection division telephone solicitation fund
220+35 established by IC 24-4.7-3-6 to be used for the administration and
221+36 enforcement of section 3(b)(19) of this chapter.
222+37 (i) A senior consumer relying upon an uncured or incurable
223+38 deceptive act, including an act related to hypnotism, may bring an
224+39 action to recover treble damages, if appropriate.
225+40 (j) An offer to cure is:
226+41 (1) not admissible as evidence in a proceeding initiated under this
227+42 section unless the offer to cure is delivered by a supplier to the
228+HB 1109—LS 6761/DI 92 6
229+1 consumer or a representative of the consumer before the supplier
230+2 files the supplier's initial response to a complaint; and
231+3 (2) only admissible as evidence in a proceeding initiated under
232+4 this section to prove that a supplier is not liable for attorney's fees
233+5 under subsection (k).
234+6 If the offer to cure is timely delivered by the supplier, the supplier may
235+7 submit the offer to cure as evidence to prove in the proceeding in
236+8 accordance with the Indiana Rules of Trial Procedure that the supplier
237+9 made an offer to cure.
238+10 (k) A supplier may not be held liable for the attorney's fees and
239+11 court costs of the consumer that are incurred following the timely
240+12 delivery of an offer to cure as described in subsection (j) unless the
241+13 actual damages awarded, not including attorney's fees and costs, exceed
242+14 the value of the offer to cure.
243+15 (l) If a court finds that a person has knowingly violated section
244+16 3(b)(20) of this chapter, the attorney general, in an action under
245+17 subsection (c), may recover from the person on behalf of the state a
246+18 civil penalty not exceeding one thousand dollars ($1,000) per
247+19 consumer. In determining the amount of the civil penalty in any action
248+20 by the attorney general under this subsection, the court shall consider,
249+21 among other relevant factors, the frequency and persistence of
250+22 noncompliance by the debt collector, the nature of the noncompliance,
251+23 and the extent to which the noncompliance was intentional. A person
252+24 may not be held liable in any action by the attorney general for a
253+25 violation of section 3(b)(20) of this chapter if the person shows by a
254+26 preponderance of evidence that the violation was not intentional and
255+27 resulted from a bona fide error, notwithstanding the maintenance of
256+28 procedures reasonably adapted to avoid the error. A person may not be
257+29 held liable in any action for a violation of this chapter for contacting a
258+30 person other than the debtor, if the contact is made in compliance with
259+31 the Fair Debt Collection Practices Act.
260+32 (m) If a court finds that a person has knowingly or intentionally
261+33 violated section 3(b)(40) of this chapter, the attorney general, in an
262+34 action under subsection (c), may recover from the person on behalf of
263+35 the state a civil penalty in accordance with IC 24-5-14.5-12(b). As
264+36 specified in IC 24-5-14.5-12(b), a civil penalty recovered under
265+37 IC 24-5-14.5-12(b) shall be deposited in the consumer protection
266+38 division telephone solicitation fund established by IC 24-4.7-3-6 to be
267+39 used for the administration and enforcement of IC 24-5-14.5. In
268+40 addition to the recovery of a civil penalty in accordance with
269+41 IC 24-5-14.5-12(b), the attorney general may also recover reasonable
270+42 attorney fees and court costs from the person on behalf of the state.
271+HB 1109—LS 6761/DI 92 7
272+1 Those funds shall also be deposited in the consumer protection division
273+2 telephone solicitation fund established by IC 24-4.7-3-6.
274+3 (n) This section does not apply to a violation of section 11 of this
275+4 chapter.
276+5 SECTION 3. IC 24-5-0.5-5 IS AMENDED TO READ AS
277+6 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 5. (a) No action may be
278+7 brought under this chapter, except under section 4(c) of this chapter,
279+8 unless (1) the deceptive act is incurable or (2) the consumer bringing
280+9 the action shall have given notice in writing to the supplier within the
281+10 sooner of (i) six (6) months after the initial discovery of the deceptive
282+11 act, (ii) one (1) year following such consumer transaction, or (iii) any
283+12 time limitation, not less than thirty (30) days, of any period of warranty
284+13 applicable to the transaction, which notice shall state fully the nature
285+14 of the alleged deceptive act and the actual damage suffered therefrom,
286+15 and unless such deceptive act shall have become an uncured deceptive
287+16 act.
288+17 (b) No action may be brought under this chapter except as expressly
289+18 authorized in section 4(a), 4(b), or 4(c) of this chapter. Any action
290+19 brought under this chapter may not be brought more than two (2) years
291+20 after the occurrence of the deceptive act.
292+21 (c) This section does not apply to a violation of section 11 of this
293+22 chapter.
294+23 SECTION 4. IC 24-5-0.5-11 IS ADDED TO THE INDIANA CODE
295+24 AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
296+25 1, 2022]: Sec. 11. (a) This section applies only to transactions
297+26 concerning the sale of nonalcoholic packaged beverages. This
298+27 section does not apply to a transaction concerning the sale of
299+28 alcoholic beverages conducted by licensees under IC 7.1.
300+29 (b) As used in this section, "beverage" means a nonalcoholic
301+30 packaged beverage.
302+31 (c) As used in this section, "division" means the consumer
303+32 protection division of the office of the attorney general.
304+33 (d) As used in this section, "nonalcoholic packaged beverage"
305+34 means a packaged beverage product that:
306+35 (1) is not an alcoholic beverage (as defined in IC 7.1-1-3-5);
307+36 (2) has a volume of at least eight (8) fluid ounces; and
308+37 (3) is enclosed in a container or wrapped in any manner in
309+38 advance of the sale of the product at wholesale or retail.
310+39 (e) As used in this section, "retailer" means a person, and any
311+40 entity affiliated and under common control with the person, that
312+41 engages in the business of selling tangible personal property to
313+42 consumers. For purposes of this section, "retailer" does not include
314+HB 1109—LS 6761/DI 92 8
315+1 a supplier.
316+2 (f) For purposes of this section, "supplier" means a supplier:
317+3 (1) in a sale of beverages, contract to sell beverages, or
318+4 franchise agreement to sell beverages; and
319+5 (2) whose gross revenues are at least eighty percent (80%)
320+6 comprised from supplying nonalcoholic packaged beverages.
321+7 For purposes of this section, the term does not include a retailer or
322+8 a supplier that primarily supplies dairy products.
323+9 (g) Except as provided in subsection (h), a supplier may not
324+10 discriminate among retailers by granting a delivery method, price,
325+11 discount, allowance, or service charge that is not available to all
326+12 retailers at the same time. Not later than the first day of each
327+13 month, a supplier must publish and make available to all retailers
328+14 a deal sheet that lists all prices, discounts, allowances, or service
329+15 charges that are available to retailers for that month. Except as
330+16 provided in subsection (h), a supplier may not offer a price,
331+17 discount, allowance, or service charge that is not published on the
332+18 monthly deal sheet.
333+19 (h) A supplier may only charge a retailer a price for a beverage
334+20 that is different than the price the supplier charges another retailer
335+21 in one (1) or more of the following circumstances:
336+22 (1) The supplier charges the retailer a volume based discount
337+23 price that is:
338+24 (A) based on a volume of not more than one (1) semitrailer
339+25 (as defined in IC 9-13-2-164) load delivered to a single
340+26 location of the retailer per stock keeping unit of the
341+27 beverage; and
342+28 (B) not offered to other retailers or published on the deal
343+sheet.29
344+30 (2) The supplier charges the retailer a higher price for the
345+31 beverages based only on a greater cost to the supplier to
346+32 deliver the beverages to the retailer.
347+33 (3) The supplier charges a different price for the beverages in
348+34 response to changing conditions affecting the market for or
349+35 marketability of the beverage, including:
350+36 (A) obsolescence of seasonal beverages; or
351+37 (B) distressed sales in anticipation of discontinuance of
352+38 business in beverages.
353+39 Any discounts not published on the monthly deal sheet, other than
354+40 the discounts listed in this subsection, are prohibited, including any
355+41 nonvolume based discounts involving marketing incentives such as
356+42 display and placement requirements.
357+HB 1109—LS 6761/DI 92 9
358+1 (i) A supplier, franchise, or other distribution agreement to
359+2 which a supplier is a party may not include an agreement that
360+3 prohibits the disclosure of the prices, discounts, allowances, or
361+4 service charges to a retailer.
362+5 (j) If a retailer or the retailer's designated wholesaler is capable
363+6 of receiving delivery of the beverages by a certain means of
364+7 delivery, a supplier must offer the retailer, directly or through the
365+8 retailer's designated wholesaler, the choice to receive the beverages
366+9 by that means of delivery.
367+10 (k) A supplier of nonalcoholic beverages is prohibited from
368+11 engaging in any communication, in any form either directly or
369+12 indirectly, that instructs, encourages, discourages, threatens, or
370+13 otherwise influences a retailer to stop selling nonalcoholic
371+14 beverages to a specific consumer or other retailer, or group of
372+15 consumers or other retailers.
373+16 (l) A supplier that fails to comply with any provision of this
374+17 section commits an unconscionable act that is treated the same as
375+18 a deceptive act under this chapter and is actionable by the attorney
376+19 general.
377+20 (m) A retailer may submit a written complaint to the division
378+21 alleging a violation of this section for investigation by the division.
379+22 The division may receive, investigate, and prosecute written
380+23 complaints concerning retailers and suppliers subject to this
381+24 section.
382+25 (n) If:
383+26 (1) the division brings an action to enjoin an unconscionable
384+27 act under this section on behalf of identified retailers; and
385+28 (2) the court finds a supplier has committed an
386+29 unconscionable act under this section;
387+the 30 division may recover from the supplier on behalf of the state a
388+31 civil penalty equal to two (2) times the amount of the difference
389+32 between the higher price at which the beverages were sold to a
390+33 retailer and the lower price at which the beverages were sold to
391+34 another retailer. An identified retailer may receive an award equal
392+35 to two (2) times the amount of the difference between the higher
393+36 price at which the beverages were sold to the retailer and the lower
394+37 price at which the beverages were sold to another retailer plus
395+38 attorney's fees incurred in the action by the retailer.
396+HB 1109—LS 6761/DI 92 10
107397 COMMITTEE REPORT
108398 Mr. Speaker: Your Committee on Commerce, Small Business and
109399 Economic Development, to which was referred House Bill 1109, has
110400 had the same under consideration and begs leave to report the same
111401 back to the House with the recommendation that said bill do pass.
112402 (Reference is to HB 1109 as introduced.)
113403 MORRIS
114404 Committee Vote: Yeas 8, Nays 4
115-_____
116-HOUSE MOTION
117-Mr. Speaker: I move that House Bill 1109 be amended to read as
118-follows:
119-Page 1, delete lines 1 through 17.
120-Delete pages 2 through 6.
121-Page 7, delete lines 1 through 22.
122-Page 7, delete lines 31 through 32.
123-Page 7, line 33, delete "(d)" and insert "(c)".
124-Page 7, line 39, delete "(e)" and insert "(d)".
125-Page 8, line 2, delete "(f)" and insert "(e)".
126-Page 8, line 9, delete "(g)" and insert "(f)".
127-Page 8, line 9, delete "(h)," and insert "(g),".
128-Page 8, line 12, delete "Not later than the first day of each".
129-Page 8, delete lines 13 through 18.
130-Page 8, line 19, delete "(h)" and insert "(g)".
131-Page 8, delete lines 22 through 29, begin a new line block indented
132-and insert:
133-"(1) The supplier charges the retailer a volume based discount
134-price that is based on a volume of not more than one (1)
135-semitrailer (as defined in IC 9-13-2-164) load delivered to a
136-single location of the retailer per stock keeping unit of the
137-beverage not offered to other retailers.".
138-Page 8, delete lines 39 through 42, begin a new line block indented
139-and insert:
140-"(4) The supplier and retailer enter an exclusive agreement in
141-which the retailer promises not to deal with other suppliers.".
142-Page 9, line 1, delete "(i)" and insert "(h)".
143-Page 9, line 5, delete "(j)" and insert "(i)".
144-.Page 9, line 10, delete "(k)" and insert "(j)".
145-HB 1109—LS 6761/DI 92 5
146-Page 9, delete lines 16 through 38, begin a new paragraph and
147-insert:
148-"(k) A supplier may not limit the quantity of beverages that may
149-be bought by one (1) retailer and sold to another retailer.".
150-Renumber all SECTIONS consecutively.
151-(Reference is to HB 1109 as printed January 20, 2022.)
152-STEUERWALD
153405 HB 1109—LS 6761/DI 92