Section 105.2 - Authorized Rebates to Wholesalers for Participation in Price Promotion(a) To be a lawful price promotion program between a manufacturer or importer and a wholesaler allowing for a manufacturer or importer to reimburse the wholesaler for a reduction in price to retailers over a specific time period, all of the following must be adhered to: (1) When creating a price promotion program that wholesalers may choose to participate in, a manufacturer or importer shall establish either a lowest suggested price at which participating wholesalers may post prices to retailers or a specific maximum amount or percentage by which participating wholesalers may reduce their posted price at which the beer is offered for sale to retailers;(2) When creating a price promotion program that wholesalers may choose to participate in, a manufacturer or importer shall state the amount of its reimbursement to participating wholesalers as either a specific percentage of the amount by which the wholesaler reduces its posted price to retailers or a specific monetary amount per sale; (i) If the reimbursement is based upon a percentage, the manufacturer or importer may also establish a maximum amount that will be reimbursed per sale;(3) Any price promotion program offered by a manufacturer or importer shall be available on the same terms to all wholesalers in the county or trading area in which the manufacturer offers the promotion; (i) No price promotion shall be offered, implemented, or conducted in a manner that affords preferential treatment to any retailer or retailers;(4) The manufacturer or importer shall indicate in a designated field within the online price posting system that a specific item is part of a manufacturer's price promotion program and provide notice to all wholesalers to which they sell beer in the county or trading area in which a price promotion is offered of the specific terms of the price promotion program required under this section. This notice shall be provided to wholesalers at the same time, at least one day prior to the start of a price promotion program. Merely posting the notice to a website, or indicating a price promotion for a line item within the online price posting system, shall not be sufficient for notice required pursuant to this subsection;(5) A price promotion program notice shall specify the product name, product size, container type, and package configuration to which the price promotion program applies; (i) A price promotion program notice may include multiple product names, product sizes, or package configurations. However, only one price promotion for any specific combination of product name, product size, and package configuration shall occur during the specified period in which the price promotion program is offered;(6) If a wholesaler accepts participation in a manufacturer's or importer's price promotion program, it shall adjust its posted prices to retailers in accordance with the terms of the price promotion program in the county or trading area of where the price promotion programs is occurring;(7) When changing its posted price due to an offered price promotion pursuant to this section, a wholesaler shall indicate in the designated field within the online price posting system that the posted price for the specific line item has been changed pursuant to a price promotion program;(8) A participating wholesaler shall request reimbursement no later than 30 calendar days following the last date of the price promotion program, and this request shall be documented in records required by section 105.2(a)(10) of this Article; (i) If the manufacturer or importer verifies participation based on sales data and automated inventory systems, that shall be deemed as a request for reimbursement under this subsection;(9) The manufacturer or importer shall pay a participating wholesaler the amount to be reimbursed no later than 30 calendar days following the wholesaler's request for reimbursement;(10) Valid records of compliance with all requirements of California Code of Regulations, title 4, section 105.2 must be retained by both the manufacturer or importer and the wholesaler for at least three years following the completion of a transaction. The department may request or inspect these records at any time pursuant to Business and Professions Code section 25753; and(11) If a wholesaler in good faith relies upon a price promotion program offered by a manufacturer or importer and changes its posted price in anticipation of a reimbursement, and otherwise complies with all requirements of wholesalers in this section and under law, any violation of this section by the manufacturer or importer does not remove a manufacturer's or importer's civil liability for agreed upon reimbursement funds pursuant to the price promotion program.(b) For purposes of this section and of determining the commencement of the limitation period pursuant to Business and Professions Code section 24208, the date of the "transaction" shall be deemed to be the last date upon which reimbursement is due or is made pursuant to subsection (9), whichever is later, except that a failure to provide records pertaining to a price promotion program to the department upon request shall be deemed to constitute concealment, tolling the limitation pursuant to Business and Professions Code section 24208.(c) If the manufacturer or importer or wholesaler fail to comply with any of the requirements of this section any reimbursement requested, paid, or accepted constitutes a violation of this section and administrative action pursuant to Business and Professions Code section 24200 may be taken against both licensees involved in an improper price promotion program. (1) The only exception to section 105.2(c) of this Article is if either licensee notifies the Department of the manufacturer or importer violation and the request, payment, and acceptance is made to discharge liability of the manufacturer or importer pursuant to California Code of Regulations, title 4, section 105.2(a)(11).Cal. Code Regs. Tit. 4, § 105.2
Note: Authority cited: Sections 25006 and 25750, Business and Professions Code; Section 22, Article XX of the California Constitution. Reference: Sections 24200, 24208, 25000, 25001, 25002, 25003, 25004, 25503 and 25753, Business and Professions Code.
1. New section filed 10-17-2023; operative 10/17/2023 pursuant to Government Code section 11343.4(b)(3) (Register 2023, No. 42).