Section 905IAC1-5.2-15. Product management

   (a) A primary source of supply or wholesaler may, on a nondiscriminatory basis, at a retailer's or dealer's permit premises, manage their retailer-assigned or dealer-assigned display space. Such product management may include, on a nondiscriminatory basis, the following:

(1) Product rotation of alcoholic beverages on retail shelves or in displays and from storage areas to retail shelves and displays.

(2) Storage area, retail shelf, and display stocking.

(3) Display construction for freestanding, special, and nonpermanent floor displays.

(4) Delivery and placement of product to the retailer-designated or dealer-designated storage areas.

  (b) A primary source of supply or wholesaler shall submit to the Indiana alcoholic beverage commission for its approval a product management plan, in the form as prescribed by the Indiana alcoholic beverage commission, prior to providing any services for the management of product supplied by that primary source of supply or wholesaler.

  (c) The product management plan shall be submitted to the Indiana alcoholic beverage commission thirty (30) days from the effective date of this rule for existing permits and at the time of filing an application for issuing, renewing, or transferring a primary source of supply or wholesaler permit each year thereafter.

  (d) The product management plan shall set forth a description of the services to be provided to holders of dealer permits and the services to be provided to holders of retailer permits. The plan shall also contain a verification that such services will be provided on a basis that does not discriminate as defined by the type of dealer or retailer permit held by a customer, and that such services shall be provided in a timely manner not to exceed five (5) working days from the time of any request by a dealer or retailer.

  (e) Certain nondiscriminatory business practices may be referenced in the product management plan based on the premise that each wholesaler's customary system for product order, delivery, and placement, as well as provision of product management services, will be based on its own company policy and current practice.

  (f) As used in this section, "nondiscrimination" means that the services a primary source of supply or wholesaler offers to holders of dealer permits are made available to all similarly situated dealers without regard to the type of dealer permit held, and that the services a primary source of supply or wholesaler offers to holders of retailer permits are made available to all similarly situated retailers without regard to the type of retailer permit held.

  (g) Acceptance of a plan by the Indiana alcoholic beverage commission shall not constitute approval by the Indiana alcoholic beverage commission of any conditions placed on the availability of product management services. The Indiana alcoholic beverage commission retains the authority to find, in a permit violation proceeding, that any particular condition is discriminatory.

  (h) No primary source of supply or wholesaler shall move the alcoholic beverages of a competing primary source of supply or wholesaler, or reset all or part of the premises of a retailer or dealer, unless the retailer or dealer sends notice, by certified mail, to all of its alcoholic beverage vendors of the date and time of the contemplated movement of alcoholic beverages or reset, no less than two (2) weeks before the contemplated date. No such certified mail notice shall be required to be sent to an alcoholic beverage vendor having executed a waiver of notice of reset, which such waiver shall be maintained by the retailer or dealer, and which such waiver shall be revocable at any time upon written notice. A primary source of supply or wholesaler, selling to that retailer or dealer, must be given an opportunity to participate in the movement of products and reset, and the resultant movement of products and reset, must not, in fact, exclude a competing primary source of supply or wholesaler from the premises. Employees of a primary source of supply or wholesaler are not to be used as employees of, or required to provide services to, the retailer or dealer on any basis, except as permitted in this rule.

  (i) All primary sources of supply and wholesalers shall be prohibited from retaliating, directly or indirectly, against any retailer or dealer which in good faith reports an incident pursuant to this rule. (Alcohol and Tobacco Commission; 905 IAC 1-5.2-15; filed Jul 12, 1994, 3:30 p.m.: 17 IR 2884; readopted filed Oct 4, 2001, 3:15 p.m.: 25 IR 941; readopted filed Sep 18, 2007, 3:42 p.m.: 20071010-IR-905070191RFA; readopted filed Oct 29, 2013, 3:39 p.m.: 20131127-IR-905130360RFA)