10/23/2019 08:591035:C3672A2A-3475-4A28-BE17-135C6526467517123ABEER BREWERS AND WHOLESALERS — CANNED COCKTAILS123A.1Purposes and scope.This chapter is enacted pursuant to the authority of the state under the provisions of the twenty-first amendment to the Constitution of the United States to promote the public’s interest in fair, efficient, and competitive distribution of beer products through regulation and encouragement of brewer and wholesaler vendors to conduct their business relations toward these ends by:1Assuring that the beer wholesaler is free to manage its business enterprise.2Assuring the brewer and the public of service from wholesalers who will devote reasonable efforts and resources to distribution and sales of all of the brewer’s products which the wholesaler has been granted the right to sell and distribute and maintain satisfactory sales levels.3Promoting and maintaining a sound, stable, and viable three-tier system of distribution of beer to the public.95 Acts, ch 101, §1123A.2Definitions.As used in this chapter, unless the context otherwise requires:1“Affected party” means a wholesaler, brewer, master distributor, successor brewer, or any person that is a party to an agreement.2“Agreement” means a contract or arrangement whether expressed or implied, oral or written, for a definite or indefinite period between a brewer and a wholesaler pursuant to which a wholesaler has been granted the right to purchase, resell, and distribute one or more brands of beer offered by a brewer, or a contract or arrangement in which a brewer grants to a wholesaler a license to use a trade name, trademark, service mark, or related characteristic and in which there is a community of interest in the marketing of the products of the brewer. An agreement exists when one or more of the following occur:aA brewer has shipped beer to a wholesaler or accepted an order for beer from a wholesaler.bA brewer purchases the right to manufacture a beer product, the right to use the trade name for the product, or the right to distribute a product from another brewer with whom the wholesaler has an agreement.3“Beer” means beer or high alcoholic content beer as defined in section 123.3.4“Brand” means a word, name, group of letters, symbol, or a combination of words, names, letters, or symbols adopted and used by a brewer to identify a specific beer product, and to distinguish that beer product from other beer products brewed or marketed by that brewery or other breweries.5“Brand extension” means a brand which incorporates all or a substantial part of the unique features of a preexisting brand of the same brewery and which relies to a significant extent on the goodwill associated with the preexisting brand. However, a general corporate logo or symbol or an advertising message, whether appearing on the product packaging or elsewhere, is not a brand, brand extension, or part of a brand or brand extension.6“Brewer” means a person who is engaged in the manufacture of beer for the purpose of sale, barter, exchange, or transportation, a master distributor, or a fermenter, processor, bottler, packager, or importer of beer, or a successor brewer.7“Canned cocktail” means as defined in section 123.3.8“Designated member” means a deceased wholesaler’s spouse, child, grandchild, parent, brother, or sister, who is entitled to inherit the deceased wholesaler’s ownership interest under the terms of the deceased wholesaler’s will, other testamentary device, or the laws of intestate succession. With respect to an incapacitated individual having an ownership interest in a wholesaler, “designated member” also means a person appointed by the court as the conservator of the individual’s property. “Designated member” also includes the appointed and qualified personal representative and the testamentary trustee of a deceased wholesaler.9“Good cause” exists if the wholesaler or affected party has failed to comply with reasonable requirements which are imposed upon the wholesaler or affected party through an agreement, which do not discriminate either by their terms or in the methods of their enforcement as compared with requirements imposed on other similarly situated wholesalers by the brewer, and which are not in violation of any law or administrative rule.10“Good faith” means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade and defined and interpreted under section 554.1201.11“Manager” means an individual named or designated by agreement between the brewer and wholesaler, who is principally responsible for the daily management of the wholesaler.12“Master distributor” means a wholesaler who acts in the role of or in a similar capacity as a brewer or outside seller of one or more brands of beer to other wholesalers on a regular basis in the normal course of business.13“Reasonable standards and qualifications” means those criteria applied by the brewer to similarly situated wholesalers during a period of twenty-four months before a proposed change in a successor manager of the wholesaler’s business.14“Similarly situated wholesalers” means wholesalers of a brewer that are of a generally comparable size, and operate in markets with similar demographic characteristics, including population size, density, distribution, and vital statistics, and reasonably similar economic and geographic conditions.15“Successor brewer” means a person who succeeds to the role of a brewer or master distributor to manufacture or distribute one or more brands of beer whether by merger, purchase of corporate shares, purchase of assets, or any other arrangement.16“Successor manager” means an individual named or designated by agreement between a brewer and wholesaler who succeeds to the role of manager who will be principally responsible for the daily management of the wholesaler.17“Territory” means the geographic area of primary sales responsibility designated by an agreement between a wholesaler and brewer for one or more brands of beer of the brewer.18“Wholesaler” means a person, other than a vintner, brewer, or bottler of beer, who sells, barters, exchanges, offers for sale, possesses with intent to sell, deals, or traffics in beer.95 Acts, ch 101, §2; 2008 Acts, ch 1032, §23; 2015 Acts, ch 17, §1; 2019 Acts, ch 107, §4, 6123A.3Termination and notice of cancellation.1Except as provided in subsection 5, a brewer or wholesaler shall not amend, modify, cancel, fail to renew, or otherwise terminate an agreement unless the brewer or wholesaler furnishes prior notification to the other party in accordance with subsection 2.2The notification required under subsection 1 shall be in writing and sent to the affected party by certified mail not less than ninety days before the date on which the agreement will be amended, modified, canceled, not renewed, or otherwise terminated. The notification shall contain all of the following:aA statement of intention to amend, modify, cancel, fail to renew, or otherwise terminate the agreement.bA statement enumerating the facts and reasons for the action, including documentation necessary to fully inform the wholesaler of the reasons for the action.cThe date on which the action will take effect.3For each cancellation, nonrenewal, or termination, the brewer shall have the burden of showing that it has acted in good faith, that the notice requirements under this section have been complied with, and that there was good cause for the cancellation, nonrenewal, or termination.4Notwithstanding the terms or conditions of any agreement, good cause exists for the purpose of a cancellation, nonrenewal, or termination if all of the following occur:aThe wholesaler fails to comply with a provision of the agreement which is both reasonable and of material significance to the business relationship between the wholesaler and the brewer.bThe brewer first acquired knowledge of the failure described in paragraph “a” not more than twenty-four months before the date notification was given pursuant to subsection 2.cThe wholesaler was given notice by the brewer of failure to comply with the agreement.dThe wholesaler has been given thirty days in which to submit a plan of corrective action to comply with the agreement and an additional ninety days to cure the noncompliance in accordance with the plan, and has failed to correct the failure to comply with the provisions of the agreement.5A brewer may cancel, fail to renew, or otherwise terminate an agreement without furnishing any prior notification and without good cause as required in subsection 4 for any of the following reasons:aThe wholesaler’s failure to pay any account when due and upon written demand by the brewer for the payment, in accordance with agreed upon payment terms.bThe wholesaler’s assignment for the benefit of creditors, or similar disposition, of substantially all of the assets of the party’s business.cThe insolvency of the wholesaler, or the institution of proceedings in bankruptcy by or against the wholesaler.dThe dissolution or liquidation of the wholesaler.eThe wholesaler’s conviction of, or plea of guilty or no contest to, a charge of violating a law or rule in this state which materially and adversely affects the ability of either party to continue to sell beer in this state, or the revocation or suspension of a license or permit to sell beer in this state for a period greater than thirty-one days.fAny attempted transfer of business assets of the wholesaler, ten percent or more of the voting stock of the wholesaler or the voting stock of any parent corporation of the wholesaler, or any change in the beneficial ownership or control of any wholesaler without obtaining the prior consent or approval as provided for under section 123A.6.gThe wholesaler’s fraudulent conduct relating to a material matter on the part of the wholesaler in dealings with the brewer or its product. However, the brewer shall have the burden of proving fraudulent conduct relating to a material matter on the part of the wholesaler in any legal action challenging the termination.hThe wholesaler distributes, sells, or delivers beer to a retailer whose premises are situated outside the geographic territory agreed upon by the wholesaler and the brewer as the area in which the wholesaler will sell beer purchased from the brewer, without the consent of the brewer and the distributor who has been assigned the territory by the brewer.95 Acts, ch 101, §3123A.4Cancellation.A brewer or a wholesaler shall not cancel, fail to renew, or otherwise terminate an agreement unless the party intending that action has good cause for the cancellation, failure to renew, or termination, has made good faith efforts to resolve disagreements, and, in any case in which prior notification is required under section 123A.3, the party intending to act has furnished the prior notification and the other party has not eliminated the reasons specified in the notification for cancellation, failure to renew, or termination, within the periods provided in section 123A.3, subsection 4, paragraph “d”.95 Acts, ch 101, §4123A.5Prohibited conduct.1A brewer shall not commit any of the following actions:aInduce or coerce, or attempt to induce or coerce, any wholesaler to engage in any illegal act or course of conduct.bRequire a wholesaler to assent to any unreasonable requirement, condition, understanding, or term of an agreement prohibiting a wholesaler from selling the product of another brewer, or prohibiting a wholesaler from utilizing, or requiring a wholesaler to utilize, a business-to-business electronic commerce platform offered by a brewer. If a wholesaler does utilize a business-to-business electronic commerce platform offered by a brewer, the brewer shall not request or receive any information related to a class “A” or special class “A” beer permittee’s sale of competitive products on the business-to-business electronic commerce platform.cFix, maintain, or establish the price at which a wholesaler may resell beer, or to change, by any means, the price charged to the wholesaler after beer has been ordered by the wholesaler from the brewer.dRequire any wholesaler to accept delivery of any beer or any other item or commodity which shall not have been ordered by the wholesaler.eRequire a wholesaler without the wholesaler’s approval to participate in an arrangement for the payment or crediting by an electronic fund transfer transaction for any item or commodity other than beer, or to access a wholesaler’s account for any item or commodity other than beer.fRequire or prohibit any change in the manager or successor manager of any wholesaler who has been approved by the brewer as of or subsequent to July 1, 1995, unless the brewer acts in good faith. If a wholesaler changes an approved manager or successor manager, a brewer shall not require or prohibit the change unless the person selected by the wholesaler fails to meet the nondiscriminatory, material, and reasonable standards and qualifications for managers or successor managers consistently applied to similarly situated wholesalers by the brewer. However, the brewer shall have the burden of proving that the person fails to meet the reasonable standards and qualifications.gDiscriminate among the brewer’s wholesalers in any business dealings including, but not limited to, the price of beer sold to the wholesaler or terms of sale offered to wholesalers, unless the difference among its wholesalers is based on reasonable grounds.hFail to provide each wholesaler of the brewer’s brand with a written agreement which contains in total the brewer’s agreement with each wholesaler, and designates a specific exclusive sales territory. The terms of written agreements executed, amended, or renewed after July 1, 1995, shall be consistent with this chapter, and this chapter may be incorporated by reference in the agreement.iEnter into an additional agreement with any other wholesaler for, or to sell to any other wholesaler, the same brand of beer or brand extension in the same territory or any portion of the territory, or to sell directly to any retailer in this state.jRequire a wholesaler to purchase one or more brands of beer in order for the wholesaler to purchase another brand of beer for any reason.kRequire a wholesaler, by any means, directly to participate in or contribute to any local or national advertising fund controlled directly or indirectly by a brewer.lRequire by a provision of an agreement or other instrument in connection with the agreement that any dispute arising out of or in connection with the agreement be determined through the application of any other state’s laws, be determined in federal court sitting in a state other than Iowa, or be determined in a state court of a state other than this state. A provision contained in any agreement or other instrument in connection with the agreement which contravenes this section shall be null and void.2A wholesaler who, pursuant to an agreement, is granted a sales territory for which the wholesaler is primarily responsible or in which the wholesaler is required to concentrate the wholesaler’s efforts, shall not make any sale or delivery of beer to any retail licensee whose place of business is not within the territory granted to the wholesaler unless agreed upon by all affected parties.95 Acts, ch 101, §52024 Acts, ch 1068, §1123A.6Transfer of business assets or stock.1A brewer shall not unreasonably withhold or delay its approval of any assignment, sale, or transfer of the stock or other indicia of ownership of a wholesaler or all or any portion of a wholesaler’s assets, wholesaler’s voting stock, the voting stock of any parent corporation, or the beneficial ownership or control of any other entity owning or controlling the wholesaler, including the wholesaler’s rights and obligations under the terms of an agreement when the person to be substituted meets reasonable standards. Upon the death of one of the partners of a partnership operating the business of a wholesaler, a brewer shall not deny the surviving partner of the partnership the right to become a successor-in-interest to the agreement between the brewer and the partnership, if the survivor has been active in the management of the partnership and is otherwise capable of carrying on the business of the partnership.2Notwithstanding subsection 1, upon the death of a wholesaler, a brewer shall not deny approval for any transfer of ownership or management to a designated member, including the rights under the agreement with the brewer. The transfer or assignment shall not be effective until written notice is given to the brewer, but the brewer’s consent to the transfer or assignment shall not be required.95 Acts, ch 101, §6123A.7Reasonable compensation.1A brewer who cancels, fails to renew, or terminates any agreement, or unlawfully denies approval of, or unreasonably withholds consent to any assignment, transfer, or sale of a wholesaler’s business assets or voting stock or other equity securities, except as provided in this chapter, shall pay the wholesaler with which the brewer has an agreement pursuant to this chapter, reasonable compensation for the fair market value of the wholesaler’s business with relation to the affected brand of beer. The fair market value of the wholesaler’s business shall include, but not be limited to, its goodwill, if any.2If a brewer and a wholesaler are unable to mutually agree on the reasonable compensation to be paid for the value of the wholesaler’s business, either party may maintain a civil action as provided in section 123A.9, or the matter may, by mutual agreement of the parties, be submitted to a three-member arbitration panel consisting of one representative selected by the brewer but unassociated with the brewer; one representative selected by the wholesaler but unassociated with the wholesaler; and an impartial arbitrator selected by the other two members from a list provided by the American arbitration association, and the claim settled in accordance with the rules provided by the American arbitration association. Arbitration costs shall be paid one-half by the wholesaler and one-half by the brewer. Arbitration shall be conducted in accordance with the commercial arbitration rules of the American arbitration association and the laws of this state, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The award of the arbitrator shall be final and binding on the parties.95 Acts, ch 101, §7123A.8Right of free association.A brewer or wholesaler shall not restrict or inhibit, directly or indirectly, the right of free association among brewers or wholesalers for any lawful purpose.95 Acts, ch 101, §8123A.9Judicial remedies.1If a brewer or a wholesaler who is a party to an agreement pursuant to this chapter fails to comply with this chapter or otherwise engages in conduct prohibited under this chapter, the aggrieved party may maintain a civil action in district court if the cause of action directly relates to or stems from the relationship of the individual parties under the agreement.2A brewer or wholesaler may bring an action for declaratory judgment for determination of any controversy arising under this chapter or out of the brewer and wholesaler agreement.3Upon proper petition to the district court, a brewer or wholesaler may obtain injunctive relief against a violation of this chapter.4In an action under subsection 1, the district court may grant the relief as the court determines is necessary or appropriate considering the purposes of this chapter. The district court may, if it finds that a brewer has acted in bad faith in invoking the amendment, modification, cancellation, nonrenewal, or termination provision of the agreement between the brewer and wholesaler, or has unreasonably withheld its consent to any assignment, transfer, or sale of the wholesaler’s business, award equitable relief, actual damages, court costs, and attorney’s fees.5The prevailing party in an action under subsection 1 shall be entitled to actual damages, court costs, and attorney’s fees at the court’s discretion.6With respect to a dispute arising under this chapter or out of the agreement between a brewer and wholesaler, the wholesaler and brewer each has the absolute right, before the wholesaler or brewer has agreed to arbitrate a particular dispute, to refuse to arbitrate that particular dispute. A brewer shall not, as a condition of entering into or renewing an agreement, require the wholesaler to agree to arbitration in lieu of judicial remedies.7A brewer shall not take retaliatory action against a wholesaler who files or manifests an intention to file a complaint of alleged violation of state or federal law or regulation by the brewer with the appropriate state or federal regulatory authority. Retaliatory action shall include, but shall not be limited to, refusal without good cause to continue the agreement, or a material reduction in the quality of service or quantity of products available to the wholesaler under the agreement, or impede the normal business operations of the wholesaler.95 Acts, ch 101, §9123A.10Waiver — prohibited.A brewer shall not require a wholesaler to waive compliance with any provision of this chapter. This chapter shall not be construed to limit or prohibit a good faith settlement of a dispute voluntarily entered into between the parties.95 Acts, ch 101, §10123A.11Indemnification.A brewer shall fully indemnify and hold harmless the brewer’s wholesaler against any losses, including but not limited to court costs and reasonable attorney fees or damages arising out of complaints, claims, or lawsuits, including but not limited to strict liability, negligence, misrepresentation, or express or implied warranty where the complaint, claim, or lawsuit relates to the manufacture or packaging of beer or other functions by the brewer which are beyond the control of the wholesaler.95 Acts, ch 101, §11123A.12Application to existing agreements.1The provisions of this chapter apply to a valid agreement in effect immediately before July 1, 1995, when the first of the following dates occurs:aOn the effective date of the next amendment, modification, or renewal of the existing valid agreement.bOn the next anniversary date of the execution of the original agreement between the wholesaler and the brewer.2If no written agreement exists, the provisions of the chapter apply to the implied or oral unwritten agreement of a brewer and a wholesaler of that brewery on July 1, 1995.95 Acts, ch 101, §12123A.13Canned cocktails applicability of chapter.The provisions of this chapter that apply to a brewer and wholesaler of beer shall apply to a manufacturer and wholesaler of canned cocktails.2019 Acts, ch 107, §5, 6