TITLE 15 GAMBLING AND LIQUOR CONTROL
CHAPTER 10 ALCOHOLIC
BEVERAGES GENERAL PROVISIONS
PART 53 SALES - WHOLESALERS
15.10.53.1 ISSUING AGENCY: New
Mexico Regulation and Licensing Department, Alcohol and Gaming Division.
[15.10.53.1 NMAC -
Rp, 15 NMAC 10.5.3.1, 4/25/2017]
15.10.53.2 SCOPE: These rules
apply to all licensees under the act.
[15.10.53.2 NMAC -
Rp, 15 NMAC 10.5.3.2, 4/25/2017]
15.10.53.3 STATUTORY AUTHORITY:
Section 60-3A-10 NMSA 1978 of the act authorizes the director to make
and adopt such rules as necessary to carry out the duties of the division.
[15.10.53.3 NMAC -
Rp, 15 NMAC 10.5.3.3, 4/25/2017]
15.10.53.4 DURATION:
Permanent.
[15.10.53.4 NMAC -
Rp, 15 NMAC 10.5.3.4, 4/25/2017]
15.10.53.5 EFFECTIVE DATE:
April 25, 2017, unless a later date is cited at the end of a section.
[15.10.53.5 NMAC -
Rp, 15 NMAC 10.5.3.5, 4/25/2017]
15.10.53.6 OBJECTIVE:
This part is intended to establish reporting, sales, credit, and other
requirements applicable to persons licensed as wholesalers under the act.
[15.10.53.6 NMAC -
Rp, 15 NMAC 10.5.3.6, 4/25/2017]
15.10.53.7 DEFINITIONS:
Unless otherwise defined in 15.10.2 NMAC, terms in this part has the
same meaning as set forth in the act.
[15.10.53.7 NMAC -
Rp, 15 NMAC 10.5.3.7, 4/25/2017]
15.10.53.8 PAYMENT, REFUND AND EXCHANGE:
A. If any invoice
for alcoholic beverages sold to any licensee remains unpaid for more than 30
days the wholesaler may not sell alcoholic beverages to that licensee except on
a cash basis.
B. Cash means a cash
payment, a check, or electronic funds transfer, however, if a licensee tenders
a check for a sale required to be cash under this regulation and that check is
dishonored, the wholesaler may not accept any further checks from that licensee
for sales required to be cash under this rule for a period of three months from
the date the check is dishonored.
Wholesalers who accept checks in payment for alcoholic beverages must
present the checks for payment in the normal course of business.
C. A wholesaler may
not use a promissory note or other similar obligation from a licensee as a
device to avoid the credit prohibition set forth in the act and this rule. As long as a promissory note, or other
similar obligation, remains outstanding for alcoholic beverages, the licensee
must pay in cash.
D. Limitations on
product returns:
1. Wholesalers
are permitted to accept a return of alcohol beverages for ordinary and usual
commercial reasons.
2. Ordinary
and usual commercial reasons for returns include defective products, broken or
short filled containers caused by error or omission of the manufacturer or the
wholesaler or agent of the wholesaler, errors in products delivered,
discontinued products, manufacturer’s product change, manufacturer quality
standards, lawful exercise of creditor claims to secured inventory, and unsold
and unopened event inventory when a special event permit was obtained from the
division. Ordinary and usual commercial
reasons for return do not include overstock of inventory, slow inventory sales,
breakage or other damage by the retailer or limited and seasonal demand
inventory.
3. Wholesalers
are permitted to provide account credit, product exchange, or return of
merchandise that is damaged, at or near spoilage, or otherwise unfit for
consumption.
E. A wholesaler may
share information with other wholesalers regarding any unpaid invoices
described in A, above, limited to the identity of the licensee, and the amount
due and duration of the unpaid invoices.
[15.10.53.8 NMAC -
Rp, 15 NMAC 10.5.3.8, 4/25/2017]
15.10.53.9 DONATIONS AND DISCOUNTS OF
ALCOHOLIC BEVERAGES:
A. A licensed New
Mexico wholesaler may donate alcoholic beverages or sell alcoholic beverages at
a discount to licensees if the purpose of the donation or discount is not to
induce the licensee to purchase alcoholic beverages from that wholesaler to the
exclusion of another wholesaler. The
licensee may sell or give the donated or discounted alcoholic beverages to
members of the public, or may give the donated or discounted alcoholic
beverages away, in accordance with the provisions of the act and these
rules. Donations or discounts allowable
under this sub-section shall be limited as follows:
(1) no
free samples may be provided for items currently provided to the licensee by
the wholesaler; and
(2) no
more than one bottle not to exceed 750 milliliters of wine or spirits, or one
case of beer may be provided as a free sample per item.
B. A licensed New
Mexico wholesaler may donate alcoholic beverages to a non-licensee for an
event, including charity and non-profit purposes, but the non-licensee may not
sell the donated alcoholic beverages under any circumstances. Any unopened alcoholic beverages not consumed
at the event may be returned to the wholesaler or kept for personal use by the
non-licensee, but may not be sold under any circumstances.
C. Any delivery of
donated or discounted alcoholic beverages by a licensed New Mexico wholesaler
must be accompanied by an invoice indicating the licensee's name, d/b/a name,
liquor license number, the amount and type of alcoholic beverages delivered,
the market value of the delivered alcoholic beverages, the place where the
alcoholic beverages were delivered, and the date. The invoice must show a sum
due of zero for donated alcoholic beverages or the discounted amount of the
purchase.
[15.10.53.9 NMAC -
Rp, 15 NMAC 10.5.3.9, 4/25/2017]
15.10.53.10 COMMERCIAL
COERCION AND BRIBERY: The Director shall enforce the prohibitions
against unfair trade practices as set forth in Section 60-8A-1 of the Act. That Section shall be interpreted consistent
with the United States Code of Federal Regulations at 27 C.F.R Section 6.1 et
seq., as may be amended, promulgated pursuant to Section 105 of the Federal
Alcohol Administration Act at 27 U.S.C. 205, and with all relevant United
States Alcohol and Tobacco Tax and Trade Bureau Industry Circulars, as may be
amended.
[15.10.53.10 NMAC;
N, 4/25/2017]
HISTORY OF
15.10.53 NMAC:
Pre-NMAC
History: The material in this part was
derived from that previously filed with the State Records Center and Archives
under:
AGD Regulation
7A-9, Extension of Credit by Wholesalers, filed 9/25/1990.
History of Repealed Material: [RESERVED]
15 NMAC 10.5.3,
Sales - Wholesalers, filed 03/14/1997 - Repealed effective 4/25/2017.