Text: SF00206 Text: SF00208 Text: SF00200 - SF00299 Text: SF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN
1 1 Section 1. NEW SECTION. 123A.1 PURPOSES AND SCOPE.
1 2 This chapter is enacted pursuant to the authority of the
1 3 state under the provisions of the twenty-first amendment to
1 4 the Constitution of the United States to promote the public's
1 5 interest in fair, efficient, and competitive distribution of
1 6 beer products through regulation and encouragement of brewer
1 7 and wholesaler vendors to conduct their business relations
1 8 toward these ends by:
1 9 1. Assuring that the beer wholesaler is free to manage its
1 10 business enterprise.
1 11 2. Assuring the brewer and the public of service from
1 12 wholesalers who will devote reasonable efforts and resources
1 13 to distribution and sales of all of the brewer's products
1 14 which the wholesaler has been granted the right to sell and
1 15 distribute and maintain satisfactory sales levels.
1 16 3. Promoting and maintaining a sound, stable, and viable
1 17 three-tier system of distribution of beer to the public.
1 18 Sec. 2. NEW SECTION. 123A.2 DEFINITIONS.
1 19 As used in this chapter, unless the context otherwise
1 20 requires:
1 21 1. "Affected party" means a wholesaler, brewer, master
1 22 distributor, successor brewer, or any person that is a party
1 23 to an agreement.
1 24 2. "Agreement" means a contract or arrangement whether
1 25 expressed or implied, oral or written, for a definite or
1 26 indefinite period between a brewer and a wholesaler pursuant
1 27 to which a wholesaler has been granted the right to purchase,
1 28 resell, and distribute one or more brands of beer offered by a
1 29 brewer, or a contract or arrangement in which a brewer grants
1 30 to a wholesaler a license to use a trade name, trademark,
1 31 service mark, or related characteristic and in which there is
1 32 a community of interest in the marketing of the products of
1 33 the brewer. An agreement exists when one or more of the
1 34 following occur:
1 35 a. A brewer has shipped beer to a wholesaler or accepted
2 1 an order for beer from a wholesaler.
2 2 b. A brewer purchases the right to manufacture a beer
2 3 product, the right to use the trade name for the product, or
2 4 the right to distribute a product from another brewer with
2 5 whom the wholesaler has an agreement.
2 6 3. "Beer" means any liquid capable of being used for
2 7 beverage purposes made by the fermentation of an infusion in
2 8 potable water of barley, malt, and hops with or without
2 9 unmalted grains or decorticated and degerminated grains, or
2 10 made by the fermentation of, or by distillation of the
2 11 fermented products of fruit, fruit extracts, or other
2 12 agricultural products, containing more than one-half of one
2 13 percent of alcohol by volume but not more than five percent of
2 14 alcohol by weight but not including mixed drinks or cocktails
2 15 mixed on the premises.
2 16 4. "Brand" means a word, name, group of letters, symbol,
2 17 or a combination of words, names, letters, or symbols adopted
2 18 and used by a brewer to identify a specific beer product, and
2 19 to distinguish that beer product from other beer products
2 20 brewed or marketed by that brewery or other breweries.
2 21 5. "Brand extension" means a brand which incorporates all
2 22 or a substantial part of the unique features of a preexisting
2 23 brand of the same brewery and which relies to a significant
2 24 extent on the goodwill associated with the preexisting brand.
2 25 However, a general corporate logo or symbol or an advertising
2 26 message, whether appearing on the product packaging or
2 27 elsewhere, is not a brand, brand extension, or part of a brand
2 28 or brand extension.
2 29 6. "Brewer" means a person who is engaged in the
2 30 manufacture of beer for the purpose of sale, barter, exchange,
2 31 or transportation, a master distributor, or a fermenter,
2 32 processor, bottler, packager, or importer of beer, or a
2 33 successor brewer.
2 34 7. "Designated member" means a deceased wholesaler's
2 35 spouse, child, grandchild, parent, brother, or sister, who is
3 1 entitled to inherit the deceased wholesaler's ownership
3 2 interest under the terms of the deceased wholesaler's will,
3 3 other testamentary device, or the laws of intestate
3 4 succession. With respect to an incapacitated individual
3 5 having an ownership interest in a wholesaler, "designated
3 6 member" also means a person appointed by the court as the
3 7 conservator of the individual's property. "Designated member"
3 8 also includes the appointed and qualified personal
3 9 representative and the testamentary trustee of a deceased
3 10 wholesaler.
3 11 8. "Good cause" exists if the wholesaler or affected party
3 12 has failed to comply with reasonable requirements which are
3 13 imposed upon the wholesaler or affected party through an
3 14 agreement, which do not discriminate either by their terms or
3 15 in the methods of their enforcement as compared with
3 16 requirements imposed on other similarly situated wholesalers
3 17 by the brewer, and which are not in violation of any law or
3 18 administrative rule.
3 19 9. "Good faith" means honesty in fact and the observance
3 20 of reasonable commercial standards of fair dealing in the
3 21 trade and defined and interpreted under section 554.2103.
3 22 10. "Manager" means an individual named or designated by
3 23 agreement between the brewer and wholesaler, who is
3 24 principally responsible for the daily management of the
3 25 wholesaler.
3 26 11. "Master distributor" means a wholesaler who acts in
3 27 the role of or in a similar capacity as a brewer or outside
3 28 seller of one or more brands of beer to other wholesalers on a
3 29 regular basis in the normal course of business.
3 30 12. "Reasonable standards and qualifications" means those
3 31 criteria applied by the brewer to similarly situated
3 32 wholesalers during a period of twenty-four months before a
3 33 proposed change in a successor manager of the wholesaler's
3 34 business.
3 35 13. "Similarly situated wholesalers" means wholesalers of
4 1 a brewer that are of a generally comparable size, and operate
4 2 in markets with similar demographic characteristics, including
4 3 population size, density, distribution, and vital statistics,
4 4 and reasonably similar economic and geographic conditions.
4 5 14. "Successor brewer" means a person who succeeds to the
4 6 role of a brewer or master distributor to manufacture or
4 7 distribute one or more brands of beer whether by merger,
4 8 purchase of corporate shares, purchase of assets, or any other
4 9 arrangement.
4 10 15. "Successor manager" means an individual named or
4 11 designated by agreement between a brewer and wholesaler who
4 12 succeeds to the role of manager who will be principally
4 13 responsible for the daily management of the wholesaler.
4 14 16. "Territory" means the geographic area of primary sales
4 15 responsibility designated by an agreement between a wholesaler
4 16 and brewer for one or more brands of beer of the brewer.
4 17 17. "Wholesaler" means a person, other than a vintner,
4 18 brewer, or bottler of beer, who sells, barters, exchanges,
4 19 offers for sale, possesses with intent to sell, deals, or
4 20 traffics in beer.
4 21 Sec. 3. NEW SECTION. 123A.3 TERMINATION AND NOTICE OF
4 22 CANCELLATION.
4 23 1. Except as provided in subsection 5, a brewer or
4 24 wholesaler shall not amend, modify, cancel, fail to renew, or
4 25 otherwise terminate an agreement unless the brewer or
4 26 wholesaler furnishes prior notification to the other party in
4 27 accordance with subsection 3.
4 28 2. The notification required under subsection 1 shall be
4 29 in writing and sent to the affected party by certified mail
4 30 not less than ninety days before the date on which the
4 31 agreement will be amended, modified, canceled, not renewed, or
4 32 otherwise terminated. The notification shall contain all of
4 33 the following:
4 34 a. A statement of intention to amend, modify, cancel, fail
4 35 to renew, or otherwise terminate the agreement.
5 1 b. A statement enumerating the facts and reasons for the
5 2 action, including documentation necessary to fully inform the
5 3 wholesaler of the reasons for the action.
5 4 c. The date on which the action will take effect.
5 5 3. For each cancellation, nonrenewal, or termination, the
5 6 brewer shall have the burden of showing that it has acted in
5 7 good faith, that the notice requirements under this section
5 8 have been complied with, and that there was good cause for the
5 9 cancellation, nonrenewal, or termination.
5 10 4. Notwithstanding the terms or conditions of any
5 11 agreement, good cause exists for the purpose of a
5 12 cancellation, nonrenewal, or termination if all of the
5 13 following occur:
5 14 a. The wholesaler fails to comply with a provision of the
5 15 agreement which is both reasonable and of material
5 16 significance to the business relationship between the
5 17 wholesaler and the brewer.
5 18 b. The brewer first acquired knowledge of the failure
5 19 described in paragraph "a" not more than twenty-four months
5 20 before the date notification was given pursuant to subsection
5 21 3.
5 22 c. The wholesaler was given notice by the brewer of
5 23 failure to comply with the agreement.
5 24 d. The wholesaler has been given thirty days in which to
5 25 submit a plan of corrective action to comply with the
5 26 agreement and an additional ninety days to cure the
5 27 noncompliance in accordance with the plan, and has failed to
5 28 correct the failure to comply with the provisions of the
5 29 agreement.
5 30 5. A brewer may cancel, fail to renew, or otherwise
5 31 terminate an agreement without furnishing any prior
5 32 notification and without good cause as required in subsection
5 33 4 for any of the following reasons:
5 34 a. The wholesaler's failure to pay any account when due
5 35 and upon written demand by the brewer for the payment, in
6 1 accordance with agreed upon payment terms.
6 2 b. The wholesaler's assignment for the benefit of
6 3 creditors, or similar disposition, of substantially all of the
6 4 assets of the party's business.
6 5 c. The insolvency of the wholesaler, or the institution of
6 6 proceedings in bankruptcy by or against the wholesaler.
6 7 d. The dissolution or liquidation of the wholesaler.
6 8 e. The wholesaler's conviction of, or plea of guilty or no
6 9 contest, to a charge of violating a law or rule in this state
6 10 which materially and adversely affects the ability of either
6 11 party to continue to sell beer in this state, or the
6 12 revocation or suspension of a license or permit to sell beer
6 13 in this state for a period greater than thirty-one days.
6 14 f. Any attempted transfer of business assets of the
6 15 wholesaler, ten percent or more of the voting stock of the
6 16 wholesaler or the voting stock of any parent corporation of
6 17 the wholesaler, or any change in the beneficial ownership or
6 18 control of any wholesaler without obtaining the prior consent
6 19 or approval as provided for under section 123A.6.
6 20 g. The wholesaler's fraudulent conduct relating to a
6 21 material matter on the part of the wholesaler in dealings with
6 22 the brewer or its product. However, the brewer shall have the
6 23 burden of proving fraudulent conduct relating to a material
6 24 matter on the part of the wholesaler in any legal action
6 25 challenging the termination.
6 26 h. The wholesaler distributes, sells, or delivers beer to
6 27 a retailer whose premises are situated outside the geographic
6 28 territory agreed upon by the wholesaler and the brewer as the
6 29 area in which the wholesaler will sell beer purchased from the
6 30 brewer, without the consent of the brewer and the distributor
6 31 who has been assigned the territory by the brewer.
6 32 Sec. 4. NEW SECTION. 123A.4 CANCELLATION.
6 33 A brewer or a wholesaler shall not cancel, fail to renew,
6 34 or otherwise terminate an agreement unless the party intending
6 35 that action has good cause for the cancellation, failure to
7 1 renew, or termination, has made good faith efforts to resolve
7 2 disagreements, and, in any case in which prior notification is
7 3 required under section 123A.3, the party intending to act has
7 4 furnished the prior notification and the other party has not
7 5 eliminated the reasons specified in the notification for
7 6 cancellation, failure to renew, or termination, within the
7 7 periods provided in section 123A.3, subsection 4, paragraph
7 8 "d".
7 9 Sec. 5. NEW SECTION. 123A.5 PROHIBITED CONDUCT.
7 10 1. A brewer shall not commit any of the following actions:
7 11 a. Induce or coerce, or attempt to induce or coerce, any
7 12 wholesaler to engage in any illegal act or course of conduct.
7 13 b. Require a wholesaler to assent to any unreasonable
7 14 requirement, condition, understanding, or term of an agreement
7 15 prohibiting a wholesaler from selling the product of another
7 16 brewer.
7 17 c. Fix, maintain, or establish the price at which a
7 18 wholesaler may resell beer, or to change, by any means, the
7 19 price charged to the wholesaler after beer has been ordered by
7 20 the wholesaler from the brewer.
7 21 d. Require any wholesaler to accept delivery of any beer
7 22 or any other item or commodity which shall not have been
7 23 ordered by the wholesaler.
7 24 e. Require a wholesaler without the wholesaler's approval
7 25 to participate in an arrangement for the payment or crediting
7 26 by an electronic fund transfer transaction for any item or
7 27 commodity other than beer, or to access a wholesaler's account
7 28 for any item or commodity other than beer.
7 29 f. Require or prohibit any change in the manager or
7 30 successor manager of any wholesaler who has been approved by
7 31 the brewer as of or subsequent to the effective date of this
7 32 Act unless the brewer acts in good faith. If a wholesaler
7 33 changes an approved manager or successor manager, a brewer
7 34 shall not require or prohibit the change unless the person
7 35 selected by the wholesaler fails to meet the
8 1 nondiscriminatory, material, and reasonable standards and
8 2 qualifications for managers or successor managers consistently
8 3 applied to similarly situated wholesalers by the brewer.
8 4 However, the brewer shall have the burden of proving that the
8 5 person fails to meet the reasonable standards and
8 6 qualifications.
8 7 g. Discriminate among the brewer's wholesalers in any
8 8 business dealings including, but not limited to, the price of
8 9 beer sold to the wholesaler or terms of sale offered to
8 10 wholesalers, unless the difference among its wholesalers is
8 11 based on reasonable grounds.
8 12 h. Fail to provide each wholesaler of the brewer's brand
8 13 with a written agreement which contains in total the brewer's
8 14 agreement with each wholesaler, and designates a specific
8 15 exclusive sales territory. The terms of written agreements
8 16 executed, amended, or renewed after the effective date of this
8 17 Act, shall be consistent with this chapter, and this chapter
8 18 may be incorporated by reference in the agreement.
8 19 i. Enter into an additional agreement with any other
8 20 wholesaler for, or to sell to any other wholesaler, the same
8 21 brand of beer or brand extension in the same territory or any
8 22 portion of the territory, or to sell directly to any retailer
8 23 in this state.
8 24 j. Require a wholesaler to purchase one or more brands of
8 25 beer in order for the wholesaler to purchase another brand of
8 26 beer for any reason.
8 27 k. Require a wholesaler, by any means, directly to
8 28 participate in or contribute to any local or national
8 29 advertising fund controlled directly or indirectly by a
8 30 brewer.
8 31 l. Require by a provision of an agreement or other
8 32 instrument in connection with the agreement that any dispute
8 33 arising out of or in connection with the agreement be
8 34 determined through the application of any other state's laws,
8 35 be determined in federal court sitting in a state other than
9 1 Iowa, or be determined in a state court of a state other than
9 2 this state. A provision contained in any agreement or other
9 3 instrument in connection with the agreement which contravenes
9 4 this section shall be null and void.
9 5 2. A wholesaler who, pursuant to an agreement, is granted
9 6 a sales territory for which the wholesaler is primarily
9 7 responsible or in which the wholesaler is required to
9 8 concentrate the wholesaler's efforts, shall not make any sale
9 9 or delivery of beer to any retail licensee whose place of
9 10 business is not within the territory granted to the wholesaler
9 11 unless agreed upon by all affected parties.
9 12 Sec. 6. NEW SECTION. 123A.6 TRANSFER OF BUSINESS ASSETS
9 13 OR STOCK.
9 14 1. A brewer shall not unreasonably withhold or delay its
9 15 approval of any assignment, sale, or transfer of the stock or
9 16 other indicia of ownership of a wholesaler or all or any
9 17 portion of a wholesaler's assets, wholesaler's voting stock,
9 18 the voting stock of any parent corporation, or the beneficial
9 19 ownership or control of any other entity owning or controlling
9 20 the wholesaler, including the wholesaler's rights and
9 21 obligations under the terms of an agreement when the person to
9 22 be substituted meets reasonable standards. Upon the death of
9 23 one of the partners of a partnership operating the business of
9 24 a wholesaler, a brewer shall not deny the surviving partner of
9 25 the partnership the right to become a successor-in-interest to
9 26 the agreement between the brewer and the partnership, if the
9 27 survivor has been active in the management of the partnership
9 28 and is otherwise capable of carrying on the business of the
9 29 partnership.
9 30 2. Notwithstanding subsection 1, upon the death of a
9 31 wholesaler, a brewer shall not deny approval for any transfer
9 32 of ownership or management to a designated member, including
9 33 the rights under the agreement with the brewer. The transfer
9 34 or assignment shall not be effective until written notice is
9 35 given to the brewer, but the brewer's consent to the transfer
10 1 or assignment shall not be required.
10 2 Sec. 7. NEW SECTION. 123A.7 REASONABLE COMPENSATION.
10 3 1. A brewer who cancels, fails to renew, or terminates any
10 4 agreement, or unlawfully denies approval of, or unreasonably
10 5 withholds consent to any assignment, transfer, or sale of a
10 6 wholesaler's business assets or voting stock or other equity
10 7 securities, except as provided in this chapter, shall pay the
10 8 wholesaler with which the brewer has an agreement pursuant to
10 9 this chapter, reasonable compensation for the fair market
10 10 value of the wholesaler's business with relation to the
10 11 affected brand of beer. The fair market value of the
10 12 wholesaler's business shall include, but not be limited to,
10 13 its goodwill, if any.
10 14 2. If a brewer and a wholesaler are unable to mutually
10 15 agree on the reasonable compensation to be paid for the value
10 16 of the wholesaler's business, either party may maintain a
10 17 civil action as provided in section 123A.9, or the matter may,
10 18 by mutual agreement of the parties, be submitted to a three-
10 19 member arbitration panel consisting of one representative
10 20 selected by the brewer but unassociated with the brewer; one
10 21 representative selected by the wholesaler but unassociated
10 22 with the wholesaler; and an impartial arbitrator selected by
10 23 the other two members from a list provided by the American
10 24 arbitration association, and the claim settled in accordance
10 25 with the rules provided by the American arbitration
10 26 association. Arbitration costs shall be paid one-half by the
10 27 wholesaler and one-half by the brewer. Arbitration shall be
10 28 conducted in accordance with the commercial arbitration rules
10 29 of the American arbitration association and the laws of this
10 30 state, and judgment upon the award rendered by the arbitrator
10 31 may be entered in any court having jurisdiction. The award of
10 32 the arbitrator shall be final and binding on the parties.
10 33 Sec. 8. NEW SECTION. 123A.8 RIGHT OF FREE ASSOCIATION.
10 34 A brewer or wholesaler shall not restrict or inhibit,
10 35 directly or indirectly, the right of free association among
11 1 brewers or wholesalers for any lawful purpose.
11 2 Sec. 9. NEW SECTION. 123A.9 JUDICIAL REMEDIES.
11 3 1. If a brewer or a wholesaler who is a party to an
11 4 agreement pursuant to this chapter fails to comply with this
11 5 chapter or otherwise engages in conduct prohibited under this
11 6 chapter, the aggrieved party may maintain a civil action in
11 7 district court if the cause of action directly relates to or
11 8 stems from the relationship of the individual parties under
11 9 the agreement.
11 10 2. A brewer or wholesaler may bring an action for
11 11 declaratory judgment for determination of any controversy
11 12 arising under this chapter or out of the brewer and wholesaler
11 13 agreement.
11 14 3. Upon proper petition to the district court, a brewer or
11 15 wholesaler may obtain injunctive relief against a violation of
11 16 this chapter.
11 17 4. In an action under subsection 1, the district court may
11 18 grant the relief as the court determines is necessary or
11 19 appropriate considering the purposes of this chapter. The
11 20 district court may, if it finds that a brewer has acted in bad
11 21 faith in invoking the amendment, modification, cancellation,
11 22 nonrenewal, or termination provision of the agreement between
11 23 the brewer and wholesaler, or has unreasonably withheld its
11 24 consent to any assignment, transfer, or sale of the
11 25 wholesaler's business, award equitable relief, actual damages,
11 26 court costs, and attorney's fees.
11 27 5. The prevailing party in an action under subsection 1
11 28 shall be entitled to actual damages, court costs, and
11 29 attorney's fees at the court's discretion.
11 30 6. With respect to a dispute arising under this chapter or
11 31 out of the agreement between a brewer and wholesaler, the
11 32 wholesaler and brewer each has the absolute right, before the
11 33 wholesaler or brewer has agreed to arbitrate a particular
11 34 dispute, to refuse to arbitrate that particular dispute. A
11 35 brewer shall not, as a condition of entering into or renewing
12 1 an agreement, require the wholesaler to agree to arbitration
12 2 in lieu of judicial remedies.
12 3 7. A brewer shall not take retaliatory action against a
12 4 wholesaler who files or manifests an intention to file a
12 5 complaint of alleged violation of state or federal law or
12 6 regulation by the brewer with the appropriate state or federal
12 7 regulatory authority. Retaliatory action shall include, but
12 8 shall not be limited to, refusal without good cause to
12 9 continue the agreement, or a material reduction in the quality
12 10 of service or quantity of products available to the wholesaler
12 11 under the agreement, or impede the normal business operations
12 12 of the wholesaler.
12 13 Sec. 10. NEW SECTION. 123A.10 WAIVER &endash; PROHIBITED.
12 14 A brewer shall not require a wholesaler to waive compliance
12 15 with any provision of this chapter. This chapter shall not be
12 16 construed to limit or prohibit a good faith settlement of a
12 17 dispute voluntarily entered into between the parties.
12 18 Sec. 11. NEW SECTION. 123A.11 INDEMNIFICATION.
12 19 A brewer shall fully indemnify and hold harmless the
12 20 brewer's wholesaler against any losses, including, but not
12 21 limited to, court costs and reasonable attorney's fees or
12 22 damages arising out of complaints, claims, or lawsuits,
12 23 including, but not limited to, strict liability, negligence,
12 24 misrepresentation, or express or implied warranty where the
12 25 complaint, claim, or lawsuit relates to the manufacture or
12 26 packaging of beer or other functions by the brewer which are
12 27 beyond the control of the wholesaler.
12 28 Sec. 12. NEW SECTION. 123A.12 APPLICATION TO EXISTING
12 29 AGREEMENTS.
12 30 1. The provisions of this chapter apply to a valid
12 31 agreement in effect immediately before the effective date of
12 32 this Act when the first of the following dates occurs:
12 33 a. On the effective date of the next amendment,
12 34 modification, or renewal of the existing valid agreement.
12 35 b. On the next anniversary date of the execution of the
13 1 original agreement between the wholesaler and the brewer.
13 2 2. If no written agreement exists, the provisions of the
13 3 chapter apply to the implied or oral unwritten agreement of a
13 4 brewer and a wholesaler of that brewery on the effective date
13 5 of this Act.
13 6 SF 207
13 7 tj/cc/26
Text: SF00206 Text: SF00208 Text: SF00200 - SF00299 Text: SF Index Bills and Amendments: General Index Bill History: General Index
Iowa General Assembly
Search: Senate Bills and Amendments (76th General Assembly)
© 1996 Cornell College and League of Women Voters of Iowa
Comments? webmaster@legis.iowa.gov.
Last update: Mon Mar 4 09:39:45 CST 1996
URL: /DOCS/GA/76GA/Legislation/SF/00200/SF00207/950309.html
jhf