2015 North Dakota Century Code Title 5 Alcoholic Beverages Chapter 5-04 Beer Wholesaler and Brewer Relationships
Download as PDF
CHAPTER 5-04
BEER WHOLESALER AND BREWER RELATIONSHIPS
5-04-01. Definitions.
As used in this chapter, unless the context otherwise requires:
1. "Agreement" means one or more of the following:
a. A commercial relationship between a licensed beer wholesaler and a licensed
brewer of a definite or indefinite duration which is not required to be evidenced in
writing.
b. A relationship whereby the beer wholesaler is granted the right to offer and sell a
brand or brands of beer offered by a brewer.
c. A relationship whereby the beer wholesaler, as an independent business,
constitutes a component of a brewer's distribution system.
d. A relationship whereby the beer wholesaler's business is substantially associated
with a brewer's brand or brands, designating the brewer.
e. A relationship whereby the beer wholesaler's business is substantially reliant on a
brewer for the continued supply of beer.
f. A written or oral arrangement for a definite or indefinite period whereby a brewer
grants a license to a beer wholesaler to use a brand, trade name, trademark, or
service mark, and in which there is a community of interest in the marketing of
goods or services at wholesale or retail.
2. "Ancillary business" means a business owned by a wholesaler, a stockholder of a
wholesaler, or a partner of a wholesaler, the primary business of which is directly
related to the transporting, storing, or marketing of the brewer's products with whom
the wholesaler has an agreement.
3. "Beer wholesaler" or "wholesaler" means any licensee, as outlined in section 5-03-01,
importing or causing to be imported into this state or purchasing or causing to be
purchased within this state, any beer for sale or resale to retailers or wholesalers
licensed pursuant to chapter 5-02 or 5-03, without regard to whether the business of
the person is conducted under the terms of an agreement with a licensed brewer.
4. "Brand" means any word, name, group of letters, symbol, or combination thereof, that
is adopted and used by a brewer or importer to identify a specific beer product, and to
distinguish that beer product from another beer product.
5. "Brand extension" is any brand that incorporates all or a substantial part of the unique
features of a preexisting brand of the same brewer or importer and which relies to a
significant extent on the goodwill associated with that preexisting brand.
6. "Brewer" means every licensed brewer or importer of beer located within or without
this state who enters into an agreement with any beer wholesaler licensed to do
business in this state.
7. "Person" means a natural person, corporation, limited liability company, partnership,
trust, agency, or other entity as well as the individual officers, directors, or other
persons in active control of the activities of each such entity. "Person" also includes
heirs, assigns, personal representatives, conservators, and guardians.
8. "Territory" or "sales territory" means the area of primary sales responsibility designated
by any agreement between any beer wholesaler and brewer for the brand or brands of
any brewer.
5-04-02. Inducement or coercion prohibited.
No brewer may:
1. Induce or coerce, or attempt to induce or coerce, any beer wholesaler to accept
delivery of any alcoholic beverage or any other commodity which has not been
ordered by the beer wholesaler.
2. Induce or coerce, or attempt to induce or coerce, any beer wholesaler to enter any
agreement or take any action that would violate any law or rule of this state by
threatening to amend, cancel, terminate, or refuse to renew any agreement existing
between a brewer and a beer wholesaler.
Page No. 1
3.
4.
5.
Require a wholesaler to assent to any condition, stipulation, or provision limiting the
wholesaler's right to sell any other brewer's product anywhere in this state, provided
the sale of another brewer's product does not materially impair the quality of service or
quantity of sales of the existing brand or brands of the brewer seeking to impose the
condition, stipulation, or provision.
Require a wholesaler to submit specific, confidential information regarding competitive
brands, as a condition of renewal or continuation of an agreement.
Fail to provide each wholesaler of its brands with a written contract which conforms to
this chapter and embodies the brewer's agreement with each wholesaler.
5-04-03. Dual distributorship prohibited.
No brewer who designates a sales territory for which a wholesaler shall be primarily
responsible shall enter into an additional agreement with any other beer wholesaler for its brand
or brands of beer in the same territory. No wholesaler may deliver beer to a retail account
outside a sales territory designated by the brewer of a particular brand or brands.
5-04-04. Agreement cancellation.
Notwithstanding the terms, provisions, or conditions of any agreement, no brewer may
amend, cancel, terminate, or refuse to renew any agreement, or cause a wholesaler to resign
from an agreement, unless good cause exists for amendment, termination, cancellation,
nonrenewal, noncontinuation, or causing a resignation. "Good cause" does not include the sale
or purchase of a brewer. "Good cause" includes, but is not limited to, the following:
1. Revocation of the wholesaler's license to do business in this state.
2. The wholesaler's bankruptcy or insolvency.
3. Assignment for the benefit of creditors or similar disposition of the wholesaler's assets.
4. The wholesaler's failure to comply, without reasonable excuse or justification, with any
reasonable and material requirement imposed upon the wholesaler by the brewer.
In any dispute over an amendment, cancellation, termination, or nonrenewal, the brewer has the
burden of proving the existence of good cause. If a wholesaler initiates a civil action, the brewer
bears the burden of proving the existence of good cause after a prima facie showing by the
wholesaler that good cause does not exist.
5-04-05. Notice of intent to terminate.
Except as otherwise provided in this section, a brewer shall provide a wholesaler with at
least ninety days prior written notice of any intent to amend, terminate, cancel, or not renew any
agreement. The notice must state all the reasons for the intended amendment, termination,
cancellation, or nonrenewal. The wholesaler has ninety days after receiving notice in which to
rectify any claimed deficiency. If the deficiency is rectified within ninety days of notice, the
proposed amendment, termination, cancellation, or nonrenewal is void. The notice provisions of
this section do not apply if the reason for the termination, cancellation, or nonrenewal is:
1. The wholesaler's bankruptcy or insolvency.
2. An assignment for the benefit of creditors or similar disposition of the business assets.
3. Revocation of the wholesaler's license.
4. Conviction or a plea of guilty or no contest to a charge of violating a law relating to the
business that materially affects the wholesaler's ability to remain in business.
5-04-06. Assignment, transfer, or sale of business.
No brewer may unreasonably withhold consent to any assignment, transfer, or sale of the
wholesaler's business whenever the wholesaler to be substituted meets the material and
reasonable qualifications and standards required of the brewer's wholesalers.
No brewer may unreasonably refuse, withhold, or unduly delay its approval of the issuance,
sale, or transfer by a corporate beer wholesaler of its capital stock or any other corporate equity
or debt security.
Page No. 2
5-04-07. Reasonable compensation for wrongful cancellation.
1. Any brewer which amends, cancels, terminates, or refuses to renew any beer
agreement, or causes a wholesaler to resign from an agreement, unless for "good
cause" as defined by section 5-04-04, or which unreasonably withholds consent to any
assignment, transfer, or sale of a wholesaler's business, shall pay the wholesaler
reasonable compensation for the value of the wholesaler's business with relationship
to the terminated brand or brands. The value of the wholesaler's business includes,
but is not limited to, the fair market value of the wholesaler's business with respect to
the terminated brand or brands, including the value of any ancillary business of the
wholesaler and the goodwill of the business or ancillary business. The value of the
wholesaler's business may not exceed the wholesaler's actual damages.
2. If the brewer and the beer wholesaler are unable to mutually agree on reasonable
compensation for the value of the wholesaler's business, the matter must be submitted
to a neutral arbitrator to be selected by the parties or, if they cannot agree, by the
presiding district judge of the district in which the wholesaler's main office is located.
All arbitration costs shall be divided equally between the wholesaler and the brewer.
The award of the neutral arbitrator shall be final and binding on the parties.
5-04-08. Judicial remedies.
If a brewer engages in conduct prohibited under this chapter, a wholesaler, with whom the
brewer has an agreement pursuant to this chapter, may maintain a suit against the brewer. The
venue of any legal action taken under this section, or pursuant to a dispute arising out of an
agreement or breach thereof, or over the provisions of an agreement, is a court, state or federal,
located in North Dakota, or where the wholesaler maintains its principal place of business in this
state. The court may grant equitable relief as is necessary to remedy the effects of conduct
which it finds to exist and which is prohibited under this chapter, including, but not limited to,
declaratory judgment and injunctive relief. The court may award actual damages and costs. If
the court finds the brewer has acted in bad faith in invoking amendment, termination,
cancellation, or nonrenewal under this chapter or has unreasonably withheld its consent to any
assignment, transfer, or sale of the wholesaler's agreement, the court may also award
reasonable attorney's fees.
5-04-09. Product price.
No brewer, whether by means of a term or condition of an agreement or otherwise, may fix
or maintain the price at which the wholesaler sells any alcoholic beverage.
5-04-10. Retaliatory action prohibited.
A brewer may 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" includes, but is not
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.
5-04-11. Wholesaler management.
No brewer may require or prohibit any change in management or personnel of any
wholesaler unless the current or potential management or personnel fails to meet essential,
reasonable, and nondiscriminatory requirements.
5-04-12. Discrimination prohibited.
No brewer may discriminate among its North Dakota wholesalers in the price of beer sold to
the North Dakota wholesalers or in price promotions. No wholesaler may refuse to sell to any
licensed alcoholic beverage retailer in its sales territory. No wholesaler may discriminate among
the licensed alcoholic beverage retailers in its sales territory in the price of beer sold to the
retailers or in price promotions.
Page No. 3
5-04-13. Waiver prohibited.
No brewer may require any wholesaler to waive compliance with any provision of this
chapter. Nothing in this chapter may be construed to limit or prohibit good-faith dispute
settlements voluntarily entered into by the parties. However, no provision of any written
agreement may require the law of any state other than North Dakota to govern the relationship
of the parties.
5-04-14. Sale of brewer.
Except for good cause, as defined by section 5-04-04, the purchase of a brewer as defined
in section 5-04-01, when the purchaser continues in business as a brewer, shall obligate the
new brewer to all terms and conditions of the agreement in effect on the date of purchase.
"Purchase", for the purposes of this chapter, includes the sale of stock, sale of assets, merger,
lease, transfer, or consolidation.
5-04-15. Application to agreements.
The provisions of this chapter cover agreements in existence on July 1, 1981, as well as
agreements entered into after July 1, 1981.
5-04-16. Right of free association.
No brewer or wholesaler may restrict or inhibit, directly or indirectly, the right of free
association among brewers or wholesalers for any lawful purpose.
5-04-17. Chapter to apply when in conflict with title 51.
The provisions of this chapter apply in any instances when the provisions of this chapter
conflict with the unfair practice provisions of title 51.
5-04-18. Same brands - Assignment of brand extensions.
Different categories of products manufactured and marketed under a common identifying
trade name are the same brand. For example, "old faithful" includes "old faithful", "old faithful
light", "old faithful draft", "old faithful dry", and other products identified principally by the old
faithful name. Differences in packaging do not establish different brands. A brewer or importer
may assign a brand extension only to the wholesaler with an exclusive sales territory to the
brand that is the basis for the brand extension. This limitation does not apply to assignments of
brand extensions to wholesalers which were made by a brewer or importer before August 1,
1995. If, before August 1, 1995, a brewer or importer assigned a brand extension to a
wholesaler that is without exclusive sales territory to the brand that is the basis of the brand
extension, any additional brand extension must be assigned to the wholesaler who first had the
brand.
Page No. 4
Disclaimer: These codes may not be the most recent version. North Dakota may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
