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Federal Alcohol Administration Act, 27 U.S.C. § 205, United States of America

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Latest Version in WIPO Lex
Details Details Year of Version 2009 Dates Adopted: January 5, 2009 Type of Text Other Texts Subject Matter Trademarks, Geographical Indications, Competition, Undisclosed Information (Trade Secrets), Enforcement of IP and Related Laws Notes The cited provision sets out the prerequisites for unfair competition and unِlawful practices concerning intoxicating liquors.

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Main text(s) Main text(s) English Federal Alcohol Administration Act, 27 U.S.C. § 205        
 
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 US194: Other [alcohol, unfair competition], Related Law, as amended 05/01/2009

TITLE 27—INTOXICATING LIQUORS

CHAPTER 8—FEDERAL ALCOHOL

ADMINISTRATION ACT

§ 205. Unfair competition and unlawful practices

It shall be unlawful for any person engaged in business as a distiller, brewer, rectifier,

blender, or other producer, or as an importer or wholesaler, of distilled spirits, wine, or

malt beverages, or as a bottler, or warehouseman and bottler, of distilled spirits, directly

or indirectly or through an affiliate:

(a) Exclusive outlet

To require, by agreement or otherwise, that any retailer engaged in the sale of distilled

spirits, wine, or malt beverages, purchase any such products from such person to the

exclusion in whole or in part of distilled spirits, wine, or malt beverages sold or offered

for sale by other persons in interstate or foreign commerce, if such requirement is made

in the course of interstate or foreign commerce, or if such person engages in such practice

to such an extent as substantially to restrain or prevent transactions in interstate or foreign

commerce in any such products, or if the direct effect of such requirement is to prevent,

deter, hinder, or restrict other persons from selling or offering for sale any such products

to such retailer in interstate or foreign commerce; or

(b) “Tied house”

To induce through any of the following means, any retailer, engaged in the sale of

distilled spirits, wine, or malt beverages, to purchase any such products from such person

to the exclusion in whole or in part of distilled spirits, wine, or malt beverages sold or

offered for sale by other persons in interstate or foreign commerce, if such inducement is

made in the course of interstate or foreign commerce, or if such person engages in the

practice of using such means, or any of them, to such an extent as substantially to restrain

or prevent transactions in interstate or foreign commerce in any such products, or if the

direct effect of such inducement is to prevent, deter, hinder, or restrict other persons from

selling or offering for sale any such products to such retailer in interstate or foreign

commerce:

(1) By acquiring or holding (after the expiration of any existing license) any interest in

any license with respect to the premises of the retailer; or

(2) by acquiring any interest in real or personal property owned, occupied, or used by the

retailer in the conduct of his business; or

(3) by furnishing, giving, renting, lending, or selling to the retailer, any equipment,

fixtures, signs, supplies, money, services, or other thing of value, subject to such

exceptions as the Secretary of the Treasury shall by regulation prescribe, having due

regard for public health, the quantity and value of articles involved, established trade

customs not contrary to the public interest and the purposes of this subsection; or

(4) by paying or crediting the retailer for any advertising, display, or distribution service;

or

(5) by guaranteeing any loan or the repayment of any financial obligation of the retailer;

or

(6) by extending to the retailer credit for a period in excess of the credit period usual and

customary to the industry for the particular class of transactions, as ascertained by the

Secretary of the Treasury and prescribed by regulations by him; or

(7) by requiring the retailer to take and dispose of a certain quota of any of such products;

or

(c) Commercial bribery

To induce through any of the following means, any trade buyer engaged in the sale of

distilled spirits, wine, or malt beverages, to purchase any such products from such person

to the exclusion in whole or in part of distilled spirits, wine, or malt beverages sold or

offered for sale by other persons in interstate or foreign commerce, if such inducement is

made in the course of interstate or foreign commerce, or if such person engages in the

practice of using such means, or any of them, to such an extent as substantially to restrain

or prevent transactions in interstate or foreign commerce in any such products, or if the

direct effect of such inducement is to prevent, deter, hinder, or restrict other persons from

selling or offering for sale any such products to such trade buyer in interstate or foreign

commerce:

(1) By commercial bribery; or

(2) by offering or giving any bonus, premium, or compensation to any officer, or

employee, or representative of the trade buyer; or

(d) Consignment sales

To sell, offer for sale, or contract to sell to any trade buyer engaged in the sale of distilled

spirits, wine, or malt beverages, or for any such trade buyer to purchase, offer to

purchase, or contract to purchase, any such products on consignment or under conditional

sale or with the privilege of return or on any basis otherwise than a bona fide sale, or

where any part of such transaction involves, directly or indirectly, the acquisition by such

person from the trade buyer or his agreement to acquire from the trade buyer other

distilled spirits, wine, or malt beverages—if such sale, purchase, offer, or contract is

made in the course of interstate or foreign commerce, or if such person or trade buyer

engages in such practice to such an extent as substantially to restrain or prevent

transactions in interstate or foreign commerce in any such products or if the direct effect

of such sale, purchase, offer, or contract is to prevent, deter, hinder, or restrict other

persons from selling or offering for sale any such products to such trade buyer in

interstate or foreign commerce: Provided, That this subsection shall not apply to

transactions involving solely the bona fide return of merchandise for ordinary and usual

commercial reasons arising after the merchandise has been sold; or

(e) Labeling

To sell or ship or deliver for sale or shipment, or otherwise introduce in interstate or

foreign commerce, or to receive therein, or to remove from customs custody for

consumption, any distilled spirits, wine, or malt beverages in bottles, unless such

products are bottled, packaged, and labeled in conformity with such regulations, to be

prescribed by the Secretary of the Treasury, with respect to packaging, marking,

branding, and labeling and size and fill of container

(1) as will prohibit deception of the consumer with respect to such products or the

quantity thereof and as will prohibit, irrespective of falsity, such statements relating to

age, manufacturing processes, analyses, guarantees, and scientific or irrelevant matters as

the Secretary of the Treasury finds to be likely to mislead the consumer;

(2) as will provide the consumer with adequate information as to the identity and quality

of the products, the alcoholic content thereof (except that statements of, or statements

likely to be considered as statements of, alcoholic content of malt beverages are

prohibited unless required by State law and except that, in case of wines, statements of

alcoholic content shall be required only for wines containing more than 14 per centum of

alcohol by volume), the net contents of the package, and the manufacturer or bottler or

importer of the product;

(3) as will require an accurate statement, in the case of distilled spirits (other than

cordials, liqueurs, and specialties) produced by blending or rectification, if neutral spirits

have been used in the production thereof, informing the consumer of the percentage of

neutral spirits so used and of the name of the commodity from which such neutral spirits

have been distilled, or in case of neutral spirits or of gin produced by a process of

continuous distillation, the name of the commodity from which distilled;

(4) as will prohibit statements on the label that are disparaging of a competitor’s products

or are false, misleading, obscene, or indecent; and

(5) as will prevent deception of the consumer by use of a trade or brand name that is the

name of any living individual of public prominence, or existing private or public

organization, or is a name that is in simulation or is an abbreviation thereof, and as will

prevent the use of a graphic, pictorial, or emblematic representation of any such

individual or organization, if the use of such name or representation is likely falsely to

lead the consumer to believe that the product has been indorsed, made, or used by, or

produced for, or under the supervision of, or in accordance with the specifications of,

such individual or organization: Provided, That this clause shall not apply to the use of

the name of any person engaged in business as a distiller, brewer, rectifier, blender, or

other producer, or as an importer, wholesaler, retailer, bottler, or warehouseman, of

distilled spirits, wine, or malt beverages, nor to the use by any person of a trade or brand

name used by him or his predecessor in interest prior to August 29, 1935; including

regulations requiring, at time of release from customs custody, certificates issued by

foreign governments covering origin, age, and identity of imported products: Provided

further, That nothing herein nor any decision, ruling, or regulation of any Department of

the Government shall deny the right of any person to use any trade name or brand of

foreign origin not presently effectively registered in the United States Patent and

Trademark Office which has been used by such person or predecessors in the United

States for a period of at least five years last past, if the use of such name or brand is

qualified by the name of the locality in the United States in which the product is

produced, and, in the case of the use of such name or brand on any label or in any

advertisement, if such qualification is as conspicuous as such name or brand.

It shall be unlawful for any person to alter, mutilate, destroy, obliterate, or remove any

mark, brand, or label upon distilled spirits, wine, or malt beverages held for sale in

interstate or foreign commerce or after shipment therein, except as authorized by Federal

law or except pursuant to regulations of the Secretary of the Treasury authorizing

relabeling for purposes of compliance with the requirements of this subsection or of State

law.

In order to prevent the sale or shipment or other introduction of distilled spirits, wine, or

malt beverages in interstate or foreign commerce, if bottled, packaged, or labeled in

violation of the requirements of this subsection,

(1) no bottler of distilled spirits, no producer, blender, or wholesaler of wine, or

proprietor of a bonded wine storeroom, and no brewer or wholesaler of malt beverages

shall bottle, and

(2) no person shall remove from customs custody, in bottles, for sale or any other

commercial purpose, distilled spirits, wine, or malt beverages, respectively, after such

date as the Secretary of the Treasury fixes as the earliest practicable date for the

application of the provisions of this subsection to any class of such persons (but not later

than August 15, 1936, in the case of distilled spirits, and December 15, 1936, in the case

of wine and malt beverages, and only after thirty days’ public notice), unless, upon

application to the Secretary of the Treasury, he has obtained and has in his possession a

certificate of label approval covering the distilled spirits, wine, or malt beverages, issued

by the Secretary in such manner and form as he shall by regulations prescribe: Provided,

That any such bottler of distilled spirits, or producer, blender, or wholesaler of wine, or

proprietor of a bonded wine storeroom, or brewer or wholesaler of malt beverages shall

be exempt from the requirements of this subsection if, upon application to the Secretary,

he shows to the satisfaction of the Secretary that the distilled spirits, wine, or malt

beverages to be bottled by the applicant are not to be sold, or offered for sale, or shipped

or delivered for shipment, or otherwise introduced, in interstate or foreign commerce.

Officers of internal revenue are authorized and directed to withhold the release of

distilled spirits from the bottling plant unless such certificates have been obtained, or

unless the application of the bottler for exemption has been granted by the Secretary; and

customs officers are authorized and directed to withhold the release from customs

custody of distilled spirits, wine, and malt beverages, unless such certificates have been

obtained. The District Courts of the United States, and the United States court for any

Territory shall have jurisdiction of suits to enjoin, annul, or suspend in whole or in part

any final action by the Secretary upon any application under this subsection; or

(f) Advertising

To publish or disseminate or cause to be published or disseminated by radio broadcast, or

in any newspaper, periodical or other publication or by any sign or outdoor advertisement

or any other printed or graphic matter, any advertisement of distilled spirits, wine, or malt

beverages, if such advertisement is in, or is calculated to induce sales in, interstate or

foreign commerce, or is disseminated by mail, unless such advertisement is in conformity

with such regulations, to be prescribed by the Secretary of the Treasury,

(1) as will prevent deception of the consumer with respect to the products advertised and

as will prohibit, irrespective of falsity, such statements relating to age, manufacturing

processes, analyses, guaranties, and scientific or irrelevant matters as the Secretary of the

Treasury finds to be likely to mislead the consumer;

(2) as will provide the consumer with adequate information as to the identity and quality

of the products advertised, the alcoholic content thereof (except the statements of, or

statements likely to be considered as statements of, alcoholic content of malt beverages

and wines are prohibited), and the person responsible for the advertisement;

(3) as will require an accurate statement, in the case of distilled spirits (other than

cordials, liqueurs, and specialties) produced by blending or rectification, if neutral spirits

have been used in the production thereof, informing the consumer of the percentage of

neutral spirits so used and of the name of the commodity from which such neutral spirits

have been distilled, or in case of neutral spirits or of gin produced by a process of

continuous distillation, the name of the commodity from which distilled;

(4) as will prohibit statements that are disparaging of a competitor’s products or are false,

misleading, obscene, or indecent;

(5) as will prevent statements inconsistent with any statement on the labeling of the

products advertised. This subsection shall not apply to outdoor advertising in place on

June 18, 1935, but shall apply upon replacement, restoration, or renovation of any such

advertising. The prohibitions of this subsection and regulations thereunder shall not apply

to the publisher of any newspaper, periodical, or other publication, or radio broadcaster,

unless such publisher or radio broadcaster is engaged in business as a distiller, brewer,

rectifier, or other producer, or as an importer or wholesaler, of distilled spirits, wine, or

malt beverages, or as a bottler, or warehouseman and bottler, of distilled spirits, directly

or indirectly or through an affiliate.

The provisions of subsections (a), (b), and (c) of this section shall not apply to any act

done by an agency of a State or political subdivision thereof, or by any officer or

employee of such agency.

In the case of malt beverages, the provisions of subsections (a), (b), (c), and (d) of this

section shall apply to transactions between a retailer or trade buyer in any State and a

brewer, importer, or wholesaler of malt beverages outside such State only to the extent

that the law of such State imposes similar requirements with respect to similar

transactions between a retailer or trade buyer in such State and a brewer, importer, or

wholesaler of malt beverages in such State, as the case may be. In the case of malt

beverages, the provisions of this subsection and subsection (e) of this section shall apply

to the labeling of malt beverages sold or shipped or delivered for shipment or otherwise

introduced into or received in any State from any place outside thereof, or the advertising

of malt beverages intended to be sold or shipped or delivered for shipment or otherwise

introduced into or received in any State from any place outside thereof, only to the extent

that the law of such State imposes similar requirements with respect to the labeling or

advertising, as the case may be, of malt beverages not sold or shipped or delivered for

shipment or otherwise introduced into or received in such State from any place outside

thereof.

The Secretary of the Treasury shall give reasonable public notice, and afford to interested

parties opportunity for hearing, prior to prescribing regulations to carry out the provisions

of this section.

As amended January 5, 2009


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WIPO Lex No. US194