Tied house evil is a concept that most alcohol beverage industry stakeholders are aware of.

By Brad Berkman & Louis J. Terminello of Greenspoon Marder LLP
For the beverage marketer, operating within its confines is virtually mandated to avoid regulatory scrutiny and potential administrative action by state and federal regulatory authorities. Most marketers do indeed adhere to general tied house restrictions when developing and executing programs. However, it is also likely that the distinction between federal and state tied house laws is overlooked. The purpose of this article is to instruct the reader on the distinctions between the two to avoid potential missteps that may lead to regulatory adversity. An effective way to conduct this analysis is to examine select statutory and code provisions.
A General View of State Tied House Evil
Using Florida law as an example, Florida Statue §561.42 is the state’s tied house statute. In part, the statute states:
561.42 Tied house evil; financial aid and assistance to vendor by manufacturer, distributor, importer, primary American source of supply, brand owner or registrant, or any broker, sales agent, or sales person thereof, prohibited; procedure for enforcement; exception.—
(1) No manufacturer, distributor, importer, primary American source of supply, or brand owner or registrant of any of the beverages herein referred to, whether licensed or operating in this state or out-of-state, nor any broker, sales agent, or sales person thereof, shall have any financial interest, directly or indirectly, in the establishment or business of any vendor licensed under the Beverage Law; nor shall such manufacturer, distributor, importer, primary American source of supply, brand owner or brand registrant, or any broker, sales agent, or sales person thereof, assist any vendor by any gifts or loans of money or property of any description or by the giving of any rebates of any kind whatsoever. No licensed vendor shall accept, directly or indirectly, any gift or loan of money or property of any description or any rebates from any such manufacturer, distributor, importer, primary American source of supply, brand owner or brand registrant, or any broker, sales agent, or sales person thereof;
Florida’s tied house evil essentially prohibits upper-tier industry members from having a direct or indirect financial interest in a vendor of alcoholic beverages. They shall also not assist any vendor by any gifts or loans of money or property of any description or by the giving of any rebates of any kind whatsoever (unless there is a stated exception in the law).
By comparison, below is a partial reprint of the Texas tied house evil statue. Even a quick reading shows similarities with Florida law.
Sec. 102.07. PROHIBITED DEALINGS WITH RETAILER OR CONSUMER. (a) Except as provided in Subsections (b), (d), and (g), a person who owns or has an interest in the business of a distiller, rectifier, wholesaler, class B wholesaler, or winery, or the agent, servant, or employee of such a person, may not:
(1) own or have a direct or indirect interest in the business, premises, equipment, or fixtures of a retailer;
(2) furnish, give, or lend any money, service, or thing of value to a retailer;
(3) guarantee a financial obligation of a retailer;
(4) make or offer to enter an agreement, condition, or system which will, in effect, amount to the shipment and delivery of alcoholic beverages on consignment;
(5) furnish, give, rent, lend, or sell to a retail dealer any equipment, fixtures, or supplies to be used in selling or dispensing alcoholic beverages, except that alcoholic beverages may be packaged in combination with other items if the package is designed to be delivered intact to the ultimate consumer and the additional items have no value or benefit to the retailer other than that of having the potential of attracting purchases and promoting sales;
(6) pay or make an allowance to a retailer for a special advertising or distribution service;
(7) allow an excessive discount to a retailer; or
(8) offer a prize, premium, gift, or similar inducement to a retailer or to the agent, servant, or employee of a retailer.
The essential takeaway is that, generally, state-level tied house statutes essentially contain similar prohibitions, including:
•Direct or indirect interest by an upper tier industry member in a vendor
•The upper tier industry member provides money or things of value to a vendor.
Federal Tied House by Comparison
At the federal level, alcohol beverage law regulations can be found in Title 27 Chapter 1 of the Code of Federal Regulations (C.F.R.), and federal tied house regulations can be found in Part 6.1 through 6.153 of that section.
Interestingly, certain parts of federal tied house prohibitions resemble those of the states, as illustrated in the following section of the C.F.R.:
§ 6.21 Application.
Except as provided in subpart D, it is unlawful for any industry member to induce, directly or indirectly, any retailer to purchase any products from the industry member to the exclusion, in whole or in part, of such products sold or offered for sale by other persons in interstate or foreign commerce by any of the following means:
(a) By acquiring or holding (after the expiration of any license held at the time the FAA Act was enacted) any interest in any license with respect to the premises of the retailer;
(b) By acquiring any interest in the real or personal property owned, occupied, or used by the retailer in the conduct of their business;
(c) By furnishing, giving, renting, lending, or selling to the retailer, any equipment, fixtures, signs, supplies, money, services or other thing of value, subject to the exceptions contained in subpart D;
(d) By paying or crediting the retailer for any advertising, display, or distribution service;
(e) By guaranteeing any loan or the repayment of any financial obligation of the retailer;
(f) 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 prescribed in § 6.65; or
(g) By requiring the retailer to take and dispose of a certain quota of any such products.
A careful examination of the above reveals an expressed and distinct element of federal tied house. The reader should pay specific attention to the use of the term exclusion, which is further defined in § 6.151 and § 6.152:
§ 6.151 Exclusion, in general.
(a) Exclusion, in whole or in part, occurs:
(1) When a practice by an industry member, whether direct, indirect, or through an affiliate, places (or has the potential to place) retailer independence at risk by means of a tie or link between the industry member and retailer or by any other means of industry member control over the retailer; and
(2) Such practice results in the retailer purchasing less than it would have of a competitor’s product.
(b) Section 6.152 lists practices that create a tie or link that places retailer independence at risk. Section 6.153 lists the criteria used for determining whether other practices can put retailer independence at risk.
§ 6.152 Practices which put retailer independence at risk.
The practices specified in this section put retailer independence at risk. The practices specified here are examples and do not constitute a complete list of those practices that put retailer independence at risk.
(a) The act by an industry member of resetting stock on a retailer’s premises (other than stock offered for sale by the industry member).
(b) The act by an industry member of purchasing or renting display, shelf, storage or warehouse space (i.e., slotting allowance).
(c) Ownership by an industry member of less than a 100 percent interest in a retailer, where such ownership is used to influence the purchases of the retailer.
(d) The act by an industry member of requiring a retailer to purchase one alcoholic beverage product in order to be allowed to purchase another alcoholic beverage product at the same time.
Placing retailer independence at risk is a fundamental element of the concept of exclusion. TTB investigators, when examining a case for exclusion, look for the presence of evidence of Subsection 2 § 6.151 – that is, did the industry members’ actions result in the retailer purchasing less of a competitor’s product as a result of those actions or practice. § 6.152 provides us with guidance as to practices that give rise to exclusion, but that same section states that the list is not exhaustive.
For the alcohol beverage marketer, this presents a unique challenge. After all, the goal of both the sales and marketing teams is to increase sales through shelf or back bar presence or placement on a wine list. A natural extension of a placement of this sort is that another brand very likely will lose its spot on the aforementioned selling real estate.
The lesson to be gleaned under federal tied house regulations is that brand builders should put practices in place that arguably feature their brands at retail and allow consumers to make the choice. Retailers will govern themselves based on consumer preference rather than on the exclusion of one brand over another, thereby putting retailer independence at risk.
Tide house violations can take many forms and can occur both at the state and federal levels. Investigators are well versed in building and prosecuting cases of tied house violations. Though the discussion above does not address the full scope of potential violations, it is incumbent on marketers of alcohol to be aware of state and federal laws in this area and tailor their programs with the objectives of sales success and regulatory compliance.








