AGO 1989-034.

• Case Date: March 21, 1989
• Court: Kansas

Kansas Attorney General Opinions 1989. AGO 1989-034. March 21, 1989ATTORNEY GENERAL OPINION NO. 89-34The Honorable Wint Winter, Jr. State Senator Second District State Capitol Room 120-S Topeka, Kansas Re: Intoxicating Liquors and Beverages--Miscellaneous Provisions--Discrimination in Sales, Services or Prices Unlawful Synopsis: The quantity discount prohibition of K.A.R. 14-14-11 constitutes a regulation imposed on the alcoholic beverage industry by the state itself and is therefore not subject to federal antitrust laws. Cited herein: K.S.A.1988 Supp. 41-210; K.S.A. 41-211; K.S.A.1988 Supp. 41-702; 41-703; 41-729; 41-1101; K.A.R. 14-14-11 (Jan. 7, 1988); 15 U.S.C. §§ 1, 13. * * * Dear Senator Winter: You request our opinion regarding the legality of an Alcoholic Beverage Control Division (ABC) regulation in so far as it prohibits distributors of alcoholic beverages from offering quantity discounts to retailers. While not specifically stated, we believe you are concerned that this may be violative of the antitrust laws. K.A.R. 14-14-11 (Jan. 7, 1988) provides in part:

"(a) No manufacturer of alcoholic liquor, holding a manufacturer's license issued by the director and no manufacturer of alcoholic liquor outside of this state manufacturing alcoholic liquors for sale and distribution within the state and no licensed distributor within the state, their agents, salesmen or representatives shall, directly or indirectly, offer, give or furnish any gifts, prizes, coupons, premiums, rebates, quantity discounts, entertainment decorations, services of any employee, including errands and administrative services or any other inducement or thing of value of any kind to a licensed retailer or to an applicant for a retail liquor license who has submitted an application to the director, except as provided in Article 10." (Emphasis added.)

The history clause of this regulation states that it is implementing provisions of K.S.A.1988 Supp. 41-702, 41-703 and 41-1101. These statutes generally prohibit manufacturers and distributors from offering gifts and other things of value to retailers, and from discriminating in the form of offering different prices to different retailers. The statute authorizing adoption of ABC regulations provides for the proposal and adoption of "such rules and regulations as necessary to carry out the...