Section 25D Price discrimination
Section 25D. (a) There shall be filed with, and when filed shall be deemed part of, the schedule filed for a brand of alcoholic beverages pursuant to section twenty-five B an affirmation duly verified by the owner of such brand of alcoholic beverage, or by the wholesaler designated as agent for the purpose of filing such schedule if the owner of the brand of alcoholic beverage is not licensed by the commission, that the bottle and case price of alcoholic beverages to wholesalers set forth in such schedule is not higher than the lowest price at which such item of alcoholic beverage will be sold by such brand owner or such wholesaler designated as agent, or any related person, to any wholesaler anywhere in any other state of the United States or in the District of Columbia, or to any state or state agency which owns and operates retail alcoholic beverage stores at any time during the calendar month for which such schedule shall be in effect, and if a like affirmation has been filed at least once but was not filed during the calendar month immediately preceding the month in which such schedule is filed, then also at any time during the calendar months not exceeding six months immediately preceding the month in which such schedule shall be in effect and succeeding the last calendar month during which a like affirmation was in effect. As used in this paragraph, the term “related person” shall mean any person (1) in the business of which such brand owner or wholesaler designated as agent has an interest, direct or indirect, by stock or other security ownership, as lender or lienor, or by interlocking directors or officers, or (2) the exclusive, principal or substantial business of which is the sale of a brand or brands of alcoholic beverages purchased from such brand owner or wholesaler designated as agent, or (3) which has an exclusive franchise or contract to sell such brand or brands.
(b) There shall be filed with, and when filed shall be deemed part of, any other schedule filed for a brand of alcoholic beverage pursuant to section twenty-five B an affirmation duly verified by the person filing such schedule that the bottle and case price of alcoholic beverages to wholesalers set forth in such schedule is no higher than the lowest price at which such item of alcoholic beverage will be sold by such person to any wholesaler anywhere in any other state of the United States or in the District of Columbia, or to any state or state agency which owns and operates retail alcoholic beverage stores at any time during the calendar month for which such schedule shall be in effect, and if a like affirmation has been filed at least once but was not filed during the calendar month immediately preceding the month in which such schedule is filed, then also at any time during the calendar months not exceeding six months immediately preceding the month in which such schedule shall be in effect and succeeding the last calendar month during which a like affirmation was in effect.
(c) In the event an affirmation with respect to any item of alcoholic beverage is not filed within the time provided by section twenty-five B, any schedule for which such affirmation is required shall be deemed invalid with respect to such item of alcoholic beverage, and no such item may be sold to or purchased by any wholesaler or retailer during the period covered by any such schedule; provided however that the commission, in writing, may, for good cause shown and for reasons not inconsistent with the purposes of this section and under such terms and conditions as it may deem necessary, allow any schedule which is otherwise sufficient to be deemed valid with respect to items of alcoholic beverage for which no affirmation has been filed, as provided by this section.
(d) In determining the lowest price for which any item of alcoholic beverage was sold in any other state or in the District of Columbia, or to any state (or state agency) which owns and operates retail alcoholic beverage stores, appropriate reductions shall be made to reflect all discounts in excess of those to be in effect under such schedule, and all rebates, free goods, allowances and other inducements of any kind whatsoever offered or given to any such wholesaler, or state (or state agency), as the case may be, purchasing such item in such other state or in the District of Columbia; provided that nothing contained in subsections (a) and (b) shall prevent differentials in price which make only due allowance for differences in state taxes and fees, and in the actual cost of delivery. As used in this subsection, the term “state taxes or fees” shall mean the excise taxes imposed or the fees required by any state or the District of Columbia upon or based upon the gallon of alcoholic beverages, and the term “gallon” shall mean one hundred twenty-eight fluid ounces.
(e) Notwithstanding and in lieu of any other penalty provided in any other provisions of this chapter, any person who makes a false statement in any affirmation made and filed pursuant to subsections (a) or (b) shall be punished by a fine of not more than ten thousand dollars or by imprisonment for not more than six months, or by both such fine and imprisonment. Every affirmation made and filed pursuant to subsections (a) and (b) shall be deemed to have been made in each county of the commonwealth in which the brand of alcoholic beverage is offered for sale under the terms of said schedule.
(f) Upon final judgment of conviction of any person for violation of subsection (e), the commission may refuse to accept from such person for any period of months, not exceeding three calendar months, any affirmation required to be filed by him.
(g) The commission is hereby authorized and empowered to carry on such investigations and to audit the books and accounts of such licensees under this chapter as it may deem necessary for clarifying, carrying out, enforcing and preventing violation of all and any provisions of this section.
(h) The commission may make such rules and regulations as shall be appropriate to carry out the purposes of this section. For the purpose of this section alcoholic beverages shall not include malt beverages.