(1) As indicated in Part 82 of this Title, it is unlawful and a violation of article 20-A of the Tax Law for any agent, CMSA wholesale dealer, chain store or CMSA retail dealer, with the intent to harm competitors or competition or to avoid taxation, to advertise, offer to sell or sell cigarettes at less than cost. Any evidence of an offer of a rebate in price, or giving of a rebate in price, an offer of a concession, or giving of a concession of any kind or nature whatsoever in connection with the sale of cigarettes in New York State is prima facie evidence of such intent.

(2) Moreover, it is unlawful and a violation of such article for any CMSA wholesale dealer, chain store or CMSA retail dealer to induce, attempt to induce, procure or attempt to procure the purchase of cigarettes at a price which is less than cost or to so induce or procure, or attempt to induce or procure, any rebate or concession of any kind or nature whatsoever in connection with the purchase of cigarettes in this State. Inducing or attempting to induce, or procuring or attempting to procure the purchase of cigarettes at a price which is less than cost is prima facie evidence of an intent to harm competitors or competition or to avoid taxation. A rebate or a concession will be deemed induced or procured when such rebate or concession is knowingly brought about or caused by any effort, influence or persuasion by or on behalf of the purchaser.

(1) The words rebate and concession shall not be strictly construed so as to narrow or circumvent the cigarette marketing standards. In general, rebate and concession are synonymous in that each conveys the offer or giving, in the case of the seller, or the inducement or procurement, in the case of the purchaser, of anything of value. Generally, a concession is the granting or yielding to a request or demand at or before the time of sale, where as a rebate is a return of something of value at a later time.

(2) A rebate or a concession, in and of itself, is neither unlawful for the purpose of the cigarette marketing standards nor a violation of the Tax Law where such rebate or concession does not directly or indirectly serve to reduce the price below that at which cigarettes can be lawfully sold or purchased in this State. A determination as to whether a rebate or concession has been offered, given, induced or procured and as to whether or not such rebate or concession reduces the price of cigarettes below the legal minimum, demands a close analysis of each situation on its own merits. The burden of proving the legality of a rebate or concession shall be upon the seller when such rebate or concession is offered or given, and upon the purchaser when the rebate or concession is induced or procured.