senate Bill S1315

Signed by Governor

Relates to agreements between brewers and beer wholesalers

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed by Governor
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actions

  • 06 / Jan / 2011
    • REFERRED TO COMMERCE, ECONOMIC DEVELOPMENT AND SMALL BUSINESS
  • 04 / Jan / 2012
    • REFERRED TO COMMERCE, ECONOMIC DEVELOPMENT AND SMALL BUSINESS
  • 30 / Jan / 2012
    • REPORTED AND COMMITTED TO RULES
  • 30 / Jan / 2012
    • ORDERED TO THIRD READING CAL.127
  • 31 / Jan / 2012
    • PASSED SENATE
  • 31 / Jan / 2012
    • DELIVERED TO ASSEMBLY
  • 31 / Jan / 2012
    • REFERRED TO ECONOMIC DEVELOPMENT
  • 18 / Apr / 2012
    • SUBSTITUTED FOR A8962
  • 18 / Apr / 2012
    • ORDERED TO THIRD READING CAL.434
  • 19 / Apr / 2012
    • PASSED ASSEMBLY
  • 19 / Apr / 2012
    • RETURNED TO SENATE
  • 20 / Jul / 2012
    • DELIVERED TO GOVERNOR
  • 01 / Aug / 2012
    • SIGNED CHAP.367

Summary

Permits brewers with a certain annual volume and with a certain percentage of sales to terminate an agreement with a beer wholesaler without having good cause; requires payment of fair market value of the applicable distribution rights lost; allows for the arbitration panel to review the fair market value; sets forth definitions.

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Bill Details

See Assembly Version of this Bill:
A8962
Versions:
S1315
Legislative Cycle:
2011-2012
Law Section:
Alcoholic Beverage Control Law
Laws Affected:
Amd ยง55-c, ABC L
Versions Introduced in Previous Legislative Cycles:
2009-2010: S5614B, A488C
2011-2012: A789

Sponsor Memo

BILL NUMBER:S1315

TITLE OF BILL:
An act to amend the alcoholic beverage control law, in relation to
agreements between small brewers and beer wholesalers

PURPOSE OR GENERAL IDEA OF BILL:
This bill amends the ABCL to allow small brewers whose annual volume is
less than 300,000 barrels of beer and whose sales to a wholesaler are
(3%) or less of a multi-brand beer wholesaler's annual business, the
right to terminate an agreement providing they pay the wholesaler fair
compensation, except when the termination is for "good cause" as
provided in Section 55-c of the ABCL.

SUMMARY OF SPECIFIC PROVISIONS:
Section one of this bill amends Section 55-c of the ABCL by adding a new
subdivision 4-c. The bill defines small brewer in terms of barrelage and
share of a wholesaler's business (as above) and provides for ending an
agreement with a beer wholesaler subject to certain terms relating to
the payment of fair compensation to the beer wholesaler for the transfer
of the small brewers' brands. Additionally, the bill gives the beer
wholesaler the right to submit to binding arbitration regarding "fair
market value" and requires the small brewer to pay all arbitration costs
if the "value" is not a "good faith" estimate. The bill provides for a
prospective effective date of January 1, 2012, to allow both beer whole-
salers and small brewer suppliers a 6 month period to work out any
concerns they may have prior to the act's effective date.

JUSTIFICATION:
The Beer Franchise Law passed in 1996 and was amended in 2001 with the
purpose of protecting beer wholesalers which were smaller local and
often family owned businesses from arbitrary termination by large multi-
national breweries and ensure if they did agree to sell their distrib-
ution rights they would receive fair compensation. Over the period this
law has been in existence much has changed in the brewing industry.
There has been significant consolidation in the beer wholesaler industry
as a result of the law by the major multinational breweries. As a result
New York wholesalers have diminished in number from 112 in 1996 to less
than 60 today and those wholesalers that remain in business have consid-
erable resources and have gotten much bigger. At the same time the
number of smaller independent breweries in New York State has grown
tremendously from less than 20 in the early 90's to 63 today. Today the
opportunity for growth for many small brewers is restricted because of
contracts that require them to exclusively do business with a particular
wholesaler that is not actively supporting or selling their brand. Yet
they are not able to terminate the contract and appoint another whole-
saler except through a lengthy and potentially costly legal process that
has little assurance of success. Present remedies under the law do not
work for small brewers. If the wholesaler does not want to be terminated
they threaten expensive legal action knowing that the smaller brewer
does not have the resources to afford the legal battle, thus many small

brewers have to live with being "locked in" with relationships that are
not working. It was never the intention of the Law to be used by the
wholesaler to lock small breweries into a relationship. Thus this bill
provides a fair and appropriate amendment to the Beer Franchise Law. It
does not disrupt the workforce; jobs will not be lost. On the contrary
it will allow small brewers to accelerate the growth they are already
achieving and thereby create more good job opportunities in New York.
The bill allows the wholesaler, if they believe they have not been fair-
ly compensated, to dispute the "fair market value" paid by the brewer
through binding arbitration. By requiring payment of fair market value
and arbitration, this bill will promote a competitive and efficient
system of distribution of the small brewer's brands, and make such
brands more available in New York State, creating jobs and helping a
small but growing industry.

PRIOR LEGISLATIVE HISTORY:
2009: A.488-B - Passed Assembly
2008: A.9055-B/S.6101 - Veto Memo 92

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
The first of January next succeeding the date on which it shall have
become a law.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1315

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             January 6, 2011
                               ___________

Introduced  by  Sen.  GRIFFO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Commerce, Economic  Devel-
  opment and Small Business

AN  ACT  to  amend  the  alcoholic  beverage control law, in relation to
  agreements between small brewers and beer wholesalers

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision  4  of section 55-c of the alcoholic beverage
control law is amended by adding a new paragraph (c) to read as follows:
  (C) NOTWITHSTANDING ANY PROVISION OF THIS SUBDIVISION TO THE CONTRARY:
  (I) ANY BREWER WITH AN ANNUAL VOLUME AS DEFINED IN  SUBPARAGRAPH  (IV)
OF  THIS  PARAGRAPH  OF LESS THAN THREE HUNDRED THOUSAND BARRELS OF BEER
AND WHOSE SALES TO AN AFFECTED BEER WHOLESALER ARE THREE PERCENT OR LESS
OF THE BEER WHOLESALER'S TOTAL  ANNUAL  BRAND  SALES  MEASURED  IN  CASE
EQUIVALENT  SALES  OF  TWENTY-FOUR--TWELVE  OUNCE UNITS MAY TERMINATE AN
AGREEMENT WITH ANY BEER WHOLESALER WITHOUT HAVING GOOD  CAUSE  FOR  SUCH
TERMINATION,  AS  DEFINED  IN  PARAGRAPH  (E) OF SUBDIVISION TWO OF THIS
SECTION, AND SHALL NOT BE SUBJECT TO LIABILITY TO  THE  BEER  WHOLESALER
UNDER  PARAGRAPH (B) OF SUBDIVISION SEVEN OF THIS SECTION PROVIDED THAT,
PRIOR TO THE EFFECTIVE DATE OF THE TERMINATION, THE BREWER PAYS THE BEER
WHOLESALER THE FAIR MARKET VALUE OF THE DISTRIBUTION RIGHTS  WHICH  WILL
BE  LOST  OR DIMINISHED BY REASON OF THE TERMINATION. IF SUCH BREWER AND
BEER WHOLESALER CANNOT MUTUALLY AGREE TO THE FAIR MARKET  VALUE  OF  THE
APPLICABLE  DISTRIBUTION  RIGHTS  LOST  OR  DIMINISHED  BY REASON OF THE
TERMINATION, THEN THE BREWER SHALL PAY THE BEER WHOLESALER A GOOD  FAITH
ESTIMATE OF THE FAIR MARKET VALUE OF THE APPLICABLE DISTRIBUTION RIGHTS.
  (II) IF THE BEER WHOLESALER BEING TERMINATED UNDER SUBPARAGRAPH (I) OF
THIS  PARAGRAPH  DISPUTES  THAT  THE PAYMENT MADE BY THE BREWER WAS LESS
THAN THE FAIR MARKET VALUE OF THE DISTRIBUTION  RIGHTS,  THEN  THE  BEER
WHOLESALER MAY WITHIN FORTY-FIVE DAYS OF TERMINATION SUBMIT THE QUESTION
OF  FAIR  MARKET  VALUE  OF  THE  APPLICABLE DISTRIBUTION RIGHTS LOST OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01630-01-1

S. 1315                             2

DIMINISHED BY REASON OF THE TERMINATION TO BINDING ARBITRATION BEFORE  A
PANEL  OF  THREE  NEUTRAL  ARBITRATORS  APPOINTED IN ACCORDANCE WITH THE
COMMERCIAL ARBITRATION RULES OF THE  AMERICAN  ARBITRATION  ASSOCIATION,
WHICH  PANEL  SHALL  DETERMINE BY MAJORITY DECISION WHETHER THE BREWER'S
PAYMENT MEETS THE REQUIREMENTS OF SUBPARAGRAPH (I) OF THIS PARAGRAPH. IF
THE ARBITRATION PANEL RULES THAT THE PAYMENT MADE BY THE BREWER  TO  THE
BEER  WHOLESALER UPON TERMINATION WAS LESS THAN THE FAIR MARKET VALUE OF
DISTRIBUTION RIGHTS LOST OR DIMINISHED BY  REASON  OF  THE  TERMINATION,
THEN  THE BREWER MUST PAY THE BEER WHOLESALER THE DIFFERENCE BETWEEN THE
PAYMENT MADE TO THE BEER WHOLESALER AND THE DETERMINED FAIR MARKET VALUE
PLUS INTEREST. IF THE ARBITRATION PANEL RULES THAT THE PAYMENT  MADE  BY
THE  BREWER  TO  THE  BEER WHOLESALER UPON TERMINATION WAS MORE THAN THE
FAIR MARKET VALUE OF DISTRIBUTION RIGHTS LOST OR DIMINISHED BY REASON OF
THE TERMINATION, THEN THE  BEER  WHOLESALER  MUST  PAY  THE  BREWER  THE
DIFFERENCE  BETWEEN  THE  PAYMENT  MADE  TO  THE BEER WHOLESALER AND THE
DETERMINED FAIR MARKET VALUE PLUS INTEREST.  ALL  ARBITRATION  FEES  AND
EXPENSES  SHALL  BE EQUALLY DIVIDED AMONG THE PARTIES TO THE ARBITRATION
EXCEPT IF THE ARBITRATION PANEL DETERMINES  THAT  THE  BREWER'S  PAYMENT
UPON TERMINATION WAS NOT A GOOD FAITH ESTIMATE OF THE FAIR MARKET VALUE,
THEN  THE  PANEL  MAY AWARD UP TO ONE HUNDRED PERCENT OF THE ARBITRATION
COSTS TO THE BREWER.
  (III) NOTWITHSTANDING ANY PROVISION OF THIS SECTION TO  THE  CONTRARY,
FOR  PURPOSES OF THIS PARAGRAPH, THE TERM "BREWER" SHALL MEAN ANY PERSON
OR ENTITY ENGAGED PRIMARILY IN BUSINESS AS A BREWER OR  MANUFACTURER  OF
BEER.
  (IV) FOR THE PURPOSE OF THIS PARAGRAPH, THE TERM "ANNUAL VOLUME" SHALL
MEAN:    (1)  THE  AGGREGATE NUMBER OF BARRELS OF BEER, UNDER TRADEMARKS
OWNED BY THAT BREWERY AND BREWED,  DIRECTLY  OR  INDIRECTLY,  BY  OR  ON
BEHALF  OF THE BREWER DURING THE MEASURING PERIOD, ON A WORLDWIDE BASIS,
PLUS (2) THE AGGREGATE NUMBER OF BARRELS  OF  BEER  BREWED,  DURING  THE
MEASURING  PERIOD, DIRECTLY OR INDIRECTLY, BY OR ON BEHALF OF ANY PERSON
OR ENTITY WHICH, AT ANY TIME DURING THE  MEASURING  PERIOD,  CONTROLLED,
WAS  CONTROLLED  BY  OR  WAS  UNDER COMMON CONTROL WITH THE BREWER, ON A
WORLDWIDE BASIS. ANNUAL VOLUME  SHALL  NOT  INCLUDE  BEER  BREWED  UNDER
CONTRACT  FOR ANY OTHER BREWER. THERE SHALL BE NO DOUBLE COUNTING OF THE
SAME BARRELS OF BEER UNDER CLAUSES ONE AND TWO OF THIS SUBPARAGRAPH.
  (V) FOR THE PURPOSES OF THIS PARAGRAPH, THE  TERM  "MEASURING  PERIOD"
SHALL  MEAN  THE  TWELVE MONTH CALENDAR PERIOD IMMEDIATELY PRECEDING THE
DATE NOTICE OF TERMINATION, AS REQUIRED UNDER SUBPARAGRAPH (I)  OF  THIS
PARAGRAPH, WAS GIVEN BY A BREWER TO THE BEER WHOLESALER.
  S  2. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.

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