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SENATE FLOOR VERSION
March 30, 2021
ENGROSSED HOUSE
BILL NO. 1096 By: Strom and McEntire of the
House
and
Coleman of the Senate
An Act relating to alcoholic beverages; amending
Section 93, Chapter 366, O.S.L. 2016, as amended by
Section 2, Chapter 431, O.S.L. 2019 (37A O.S. Supp.
2020, Section 3-123), which relates to wholesalers,
beer distributors and retailers; authorizing certain
social media exchanges; defining term; and providing
an effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY Section 93, Chapter 366, O.S.L.
2016, as amended by Section 2, Chapter 431, O.S.L. 2019 (37A O.S.
Supp. 2020, Section 3-123), is amended to read as follows:
Section 3-123. A. It shall be unlawful for any person
privileged to sell alcoholic beverages to wholesalers, beer
distributors or retailers:
1. To discriminate, directly or indirectly, in price between
one wine and spirits wholesaler and another wine and spirits
wholesaler, when that manufacturer has not designated a single wine
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and spirits wholesaler, or between one retailer and another retailer
purchasing alcoholic beverages bearing the same brand or trade name
and of like age and quality, unless otherwise provided by law; or
2. To grant, directly or indirectly, any discount, rebate, free
goods, allowance or other inducement.
B. The ABLE Commission is hereby authorized to promulgate rules
which are necessary to carry out the purpose of this section and to
prevent its circumvention by offering or giving of any rebate ,
allowance, free goods, discount or any other thing or service of
value; provided, the posting or invoicing of charges per order for
processing minimum orders or per case for the handling or repacking
of goods by wine and spirits wholesalers and beer dist ributors for
sales in less than full case lots shall not constitute a violation
of this section.
C. For the violation of any provision of this section or of any
rule duly promulgated under this section, the ABLE Commission may
suspend or revoke a license as follows:
1. For a first offense, not exceeding ten (10) days ' suspension
of license;
2. For a second offense, not exceeding thirty (30) days '
suspension of license; and
3. For a third offense, the A BLE Commission shall revoke the
license.
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D. For purposes of this section, and except as otherwise
provided in subsection E of this section, "inducement" means
directly or indirectly offering, selling, trading, giving or
furnishing any discount, free goods , electronic or nonelectronic
refrigerated equipment , barrels, tubs, fixtures, dispensing
equipment, outdoor electric or nonelectric advertising structure
displaying the retailer 's name, permanent shelving, supplies, gifts,
prizes, instantly redeemable cou pons, premiums, retailer rebates,
services of any employee including but not limited to affixing price
labels or tags, routinely stocking product on shelves other than the
stocking of cold boxes, paying a third party for entering product
and price information into a retailer's computer system, portal,
website, spreadsheet or third -party system, handling product that
was not sold to the retailer by the licensee, paying a slotting fee,
selling on consignment, operating a retailer 's cash register,
conducting janitorial services, decoration, samples of alcoholic
beverages, personal property or other inducement or thing of value
to any retail spirit, retail beer, retail wine, beer and wine, mixed
beverage, caterer, bottle club or special event licensee, wine and
spirits wholesaler or beer distributor, their agents or employees.
E. It shall not be deemed an inducement for a brewer, beer
distributor, small brewer self -distributor or brewpub self -
distributor to voluntarily take the following merchandising actions
with the permission of the retail licensee:
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1. Furnish point-of-sale advertising materials and consumer
advertising specialties, as those terms are defined in 27 C.F.R.,
Section 6.84 and in compliance with the other limits and
restrictions provided in 27 C. F.R., Section 6.84;
2. Give or sell product display s, including but not limited to
barrels and tubs, provided that the value of such displays does not
exceed the limits and restrictions provided in 27 C.F.R., Section
6.83;
3. Build product displays, acce ssible to the customer and
without disturbing compet itors' products, for the product being
delivered by the beer distributor;
4. Affix pricing to the shelf strip or product display for the
product being delivered by the beer distributor, small brewer self -
distributor or brewpub self-distributor, or brewed by the brewer;
5. Routinely stock and restock shelves and cold boxes and
rotate product that has been sold to the retail licensee by the beer
distributor, small brewer self -distributor or brewpub self -
distributor, or brewed by the brewer;
6. Furnish things of value to a temporary retailer, as defined
in 27 C.F.R., Section 6.85;
7. Sell equipment or supplies to a retail licensee, provided
the equipment or supplies are sold at a price not less than the co st
to the industry member and payment is collected w ithin thirty (30)
days of the sale;
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8. Install dispensing accessories at the retail location, as
long as the retailer bears the cost of installation including
equipment; or furnish, give or sell coil cle aning services to a
retailer;
9. Withdraw quantitie s of beer or cider in undamaged, original
packaging from the retail licensee 's stock, provided the beer
distributor, small brewer self -distributor, brewpub self -distributor
or brewer sold such beer, direc tly or indirectly, to the retail
licensee and such removal is otherwise permitted under Section 3 -115
of this title; provided, however, replacing with beer or cider of
equivalent value shall not be considered a consignment sale;
10. Provide mail-in rebates for beer, cider and nonalcoholic
beverage merchandise items, funded by the brewer and redeemed by the
brewer, either by itself or through a third -party fulfillment
company, for a discount or rebate on the beer, cider or nonalcoholic
item;
11. Provide a recommended shelf plan or shelf schematic to a
retail licensee for all or any portion of the inventory sold by the
retail licensee;
12. Furnish or give a sample of beer or cider to a retailer who
has not purchased the brand from that brewer, beer distribu tor,
small brewer self-distributor or brewpub self -distributor within the
last twelve (12) months, provided that the brewer, beer distributor,
small brewer self-distributor or brewpub self -distributor may not
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give more than thirty -six (36) ounces of any br and of beer or cider
to a specific retailer;
13. Furnish or give newspaper cuts, mats or engraved blocks for
use in retailers' advertisements;
14. Package and distribute beer or cider in combination with
other nonalcoholic items for sale to consumers;
15. Give or sponsor educational seminars for employee s of
retailers either at the brewer, beer distributor, small brewer self -
distributor or brewpub self -distributor's premises or at the
retailer's establishment, including seminars dealing with use of a
retailer's equipment, training seminars for employees o f retailers
or tours of the brewer, beer distributor, small brewer self -
distributor, or brewpub self -distributor's plant premises, provided
that the brewer, beer distributor, small brewer self -distributor or
brewpub self-distributor shall not pay the retai ler for the
employees' travel, lodging or other expenses in conjunction with an
educational seminar but may provide nominal hospitality during the
event;
16. Conduct tasting or sampling activities at a r etail
establishment and purchase the products to be used from the retailer
so long as the purchase price paid does not exceed the ordinary
retail price,; provided, a beer distributor shall not be required to
provide labor for such sampling activities;
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17. Offer contest prizes, premium offers, refunds and l ike
items directly to consumers so long as officers, employees and
representatives of brewers, beer distributors, small brewer self -
distributors, brewpub self -distributors and licensed retailers are
excluded from participation;
18. List the names and addr esses of two or more unaffiliated
retailers selling the products of a brewer, beer distributor, small
brewer, small brewer self-distributor or brewpub self -distributor in
an advertisement of such brewer, beer distributor, small brewer,
small brewer self-distributor or brewpub self -distributor so long as
the requirements of 27 C.F.R., Section 6.98 are satisfied ,
considering applicable guidance issued by the United States
Department of Treasury Alcohol and T obacco Tax and Trade Bureau;
provided, nothing in th e Oklahoma Alcoholic Beverage Control Act
shall prohibit a retail , mixed beverage, on -premises beer and wine,
public event, special event, charitable auction, charitable
alcoholic beverage event or complimentary beverage licensee from
communicating with a brewer, beer distributor, small brewer, small
brewer self-distributor or brewpub self -distributor on social media
or sharing media on the social media page or site of a brewer, beer
distributor, small bre wer, small brewer self-distributor or brewpub
self-distributor. A retail, mixed beverage, on -premises beer and
wine, public event, special event, charitable auction, charitable
alcoholic beverage event or complimentary beverage licensee may
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request free social media advertising from a brewer, beer
distributor, small brewer, small brewer self -distributor or brewpub
self-distributor; provided , nothing in this section shall prohibit a
brewer, beer distributor, small brewer, small brewer self -
distributor or brewpub self-distributor from sharing, reposting or
forwarding a social media post by a retail, mixed beverage, on -
premises beer and wine, public event, special event, charitable
auction, charitable alcoholic beverage event or complimentary
beverage licensee, as long as the sharing, reposting or forwarding
of the social media post does not contain the reta il price of any
alcoholic beverage. No brewer, beer distributor, small brewer,
small brewer self-distributor or brewpub self -distributor shall pay
or reimburse a retail, mixed beverage, on-premises beer and wine,
public event, special event, charitable auction, charitable
alcoholic beverage event or complimentary beverage licensee,
directly or indirectly, for any social media advertising services.
No retail, mixed beverage, on-premises beer and wine, pub lic event,
special event, charitable auction, charitable alcoholic beverage
event or complimentary beverage licensee shall accept any payment or
reimbursement, directly or i ndirectly, for any social media
advertising service offered by a brewer, beer dist ributor, small
brewer, small brewer self -distributor or brewpub self -distributor.
For purposes of this paragraph, "social media" means a service,
platform or site where users communicate with one another and share
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media, such as pictures, videos, music an d blogs, with other users
free of charge; or
19. Entering product and price information into a retailer 's
portal, website, spreadsheet or third -party system. A brewer may
pay for a third-party system that pr ovides data and pricing services
to the brewer or a beer distributor.
F. It shall not be deemed an inducement for a brewer, beer
distributor, small brewer self -distributor or brewpub self -
distributor to engage in the following marketing activities,
provided that the brewer, beer distributor, small bre wer self-
distributor or brewpub self -distributor shall not pay the retailer 's
travel costs other than those for local transportation or lodging:
1. Provide tickets to a retailer for a sporting or
entertainment event so long as a representative of the brew er, beer
distributor, small brewer self -distributor or brewpub self -
distributor attends the event with the retailer;
2. Provide food and beverage to a retailer for immediate
consumption:
a. at a meeting at which the primary purpose is the
discussion of business,
b. at a convention when the food and beverages are
offered to all participants, or
c. at a sports or entertainment event that the
representatives of a brewer, beer distributor, small
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brewer self-distributor or brewpub self-distributor
attend with the retailer;
3. Participate in retailer association activities by engaging
in the following actions:
a. displaying products at a convention or trade show,
b. renting display booth space if the rental fee is t he
same as paid by all exhibitors at the event,
c. providing its own hospitality which is independent
from association-sponsored activities,
d. purchasing tickets to functions and paying
registration fees if the payments or fees are the same
as paid by all attendees, participants or exhibitors
at the event, or
e. making payments for advertisements in programs or
brochures issued by retailer associations at a
convention or trade show; or
4. Giving or selling outdoor signs to a retailer so long as the
following requirements of 27 C.F.R., Section 6.102 ar e satisfied:
a. the sign bears conspicuous and substantial advertising
matter about the product or the brewer, beer
distributor, small brewer self -distributor or brewpub
self-distributor which is permanently i nscribed or
securely affixed,
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b. the retailer is not compensated, directly or
indirectly, such as through a sign company, for
displaying the signs, and
c. a permanent outdoor sign does not contain the
retailer's name.
SECTION 2. This act shall become effective November 1, 2021.
COMMITTEE REPORT BY: COMMITTEE ON BUSINESS, COMMERCE AND TOURISM
March 30, 2021 - DO PASS