Illinois This Week in Springfield 99-17

CONSUMER FRAUD & PROTECTION
CREDIT & FINANCE
ENVIRONMENT & UTILITIES
FOOD & LIQUOR
LABOR
LOSS PREVENTION
PHARMACY
REGULATION & LICENSING

 

With no deal in place on a Fiscal Year 2016 budget, and an escalating war of words between Democrats and Republicans, the General Assembly did not adjourn on May 31st. Both chambers have been meeting and will continue to meet in regular session throughout the summer or until a budget agreement is reached. It is important to note that since the May 31st deadline has been reached, a 3/5ths super-majority is required to pass any legislation that requires an immediate effective date.

To date 6,735 bills have been introduced in the 99th General Assembly.  Additionally, nearly 1,800 amendments were filed. Of those, 495 bills were passed by both Chambers and have been, or will be, sent to the Governor for his action.  The chamber in which the bill originated has 30-days from the date the bill passed both chambers to transmit the bill to the Governor. The Governor has 60-days from the date his office receives the bill to sign, veto, or amendatorily veto the legislation.

The following is a list of bills by subject matter of potential consequence to retail that passed the Assembly and sent to the Governor for his consideration. For your convenience, each bill number is hyper-linked so TWIS readers can easily read each bill in the form in which it was sent to the Governor. Additionally, the position IRMA took on each bill is noted.

As always, should you require additional information or assistance, please do not hesitate to contact IRMA.

CONSUMER FRAUD AND PROTECTION

Powdered Caffeine—SB 9 (Sen. Jennifer Bertino-Tarrant, D-Plainfield/Rep. Stephanie A. Kifowit, D-Aurora) creates the Powdered Caffeine Control and Education Act. It prohibits any person from selling, offering to sell, giving away, or providing free samples of powdered pure caffeine to any person under age 18 located in the State or to any person under age 18 making the purchase from within the State.  While IRMA is generally opposed to most product bans as consumers can just make the choice not to purchase a product and the FDA should be the ultimate arbiter of which food products are safe, IRMA was neutral on this bill as the product in question was not sold by IRMA members.

IRMA POSITION: NEUTRAL

Powdered Alcohol—SB 67 (Sen. Ira Silverstein, D-Chicago/Rep. Laura Fine, D-Glenview) prohibits the sale of powdered alcohol in Illinois.  While IRMA is generally opposed to most product bans, IRMA was neutral on this bill that bans a product that was already not available for sale in Illinois.

IRMA POSITION: NEUTRAL

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CREDIT AND FINANCE

Private Label Credit Cards—In the 98th General Assembly both the Senate and House unanimously passed an IRMA-initiative that allowed for a refund on bad debt established through a Private Label Credit Card (PLCC) administered by a third party. Former Governor Pat Quinn decided to use the bill, and a few others, as a vehicle for unrelated amendatory vetoes in his final moments in office effectively killing the bill. The initiative was reintroduced in the form of SB 507 (Sen. Daniel Biss, D-Skokie/Rep. Anthony DeLuca, D-Chicago Heights).

If a consumer does not pay for the merchandise they purchase on credit, and efforts to collect fail, a bad debt is declared and the sales tax is refunded to the retailer. This happens because in the eyes of the law, a sale is deemed not to have occurred. However, several years ago, the Illinois Department of Revenue (IDOR) issued a controversial opinion that a bad debt refund did not apply to PLCC’s administered by a third party. SB 507 takes into consideration this modernization and corrects this inequity by allowing a refund of sales tax on the bad debt created by consumer using a store branded PLCC. Over the course of last year and again this year, IRMA worked with IDOR to address their procedural concerns to ensure proper documentation would be available; limited the transactions that are available for a bad debt refund; and provided a clear line of accountability.

IRMA POSITION: SUPPORT

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ENVIRONMENT AND UTILITIES

Telecom Modernization and 9-1-1 FundingSB 96 (Sen. John Sullivan, D-Quincy/Rep. Brandon Phelps, D-Harrisburg) funds the deteriorating 9-1-1 infrastructure and contains important changes to modernize Illinois telecommunications and the video competition laws. Currently, there are three surcharges that help fund the current 9-1-1 systems and network. One of these charges includes a 1.5% tax that is collected by a retailer on the sale of any prepaid wireless telecommunications service.  The retailer must include a line item on the receipt to show the surcharge. The retailer remits the surcharge to the Illinois Department of Revenue where they place it in the Wireless Service Emergency Fund. In order to fund the Illinois Telecommunications Access Corporation (“ITAC”), which provides equipment for hard of hearing and deaf people, SB 96 adds an additional 1.5% surcharge on the purchase of any prepaid wireless telecommunications service. Similar to current law, the retailer will collect the 3.0% surcharge from the consumer. To remain consistent with current law the retailer may combine both surcharges in one line item on the receipt. The 3.0% tax will be remitted to the Illinois Department of Revenue where it will be divided between the Illinois Telecommunications Access Fund and the Wireless Service Emergency Fund. SB 96 also implements a statewide $0.87 tax per landline, wireless, VOIP, and cable provided telecommunications which will be collected by telecommunication carriers and remitted to the Illinois Department of Revenue.

IRMA POSITION: NEUTRAL

Electronics Recycling—Public Act 97-0287 created the Electronic Products Recycling & Reuse Act (“Act”) that established a statewide system for recycling and/or reusing certain electronic devices discarded from residences by requiring electronic manufacturers to participate in the management of discarded and unwanted electronic products. The Act does not require local government funding or participation, instead requiring manufacturers to set up and pay for the collection, transportation, recycling and or reuse of obsolete electronic products.  As manufacturers were reaching their statutory goals earlier in the year, and municipalities were not budgeting for this foreseen reality, the municipalities were not able to keep open their operation because they are not self-sustaining. In response, the municipal waste facilities wanted to renegotiate for more funds and higher collection goals.  In HB 1455 (Rep. Emily McCasey, D-Romeoville/Sen. Pamela Althoff, R-McHenry) the manufacturers and waste facilities reached an agreement that would: (1) divide the collection goals up between two different groups of manufacturers at two different rates including television and monitors (80%) and all other electronics (50%); (2)the goals would be based on market share of TV/monitor and electronic sales; (3) the overall goal would not exceed 50 million pounds; and (4) a pilot program for a 25% credit carry over for one year.

IRMA POSITION: NEUTRAL

Prohibition on Mixing Sharps—SB 793 (Sen. Linda Holmes, D-Aurora/Rep. Ann Williams, D-Chicago) prohibits a person from knowingly mixing sharps, including, but not limited to, hypodermic, intravenous, or other medical needles or syringes or other medical household waste containing used or unused sharps, including, but not limited to, hypodermic, intravenous, or other medical needles or syringes or other sharps, with any other material intended for collection as a recyclable material by a residential hauler.  The bill was passed to protect sanitation workers from inadvertent injuries, infections, and diseases from syringes found in the garbage. Residents are encouraged to drop the needles off at voluntary drop off sites.

IRMA POSITION: NEUTRAL

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FOOD AND LIQUOR

Food Handling—Last legislative session, after a couple of years of negotiations, changes were made to the Illinois Food Code to ensure that every person who is preparing food in Illinois has training in food handling and safety procedures.  As part of that initiative, persons seeking Food Service Sanitation Managers Certifications (FSSMC) have to take a nationally accredited exam with a passing score of at least 75%.  SB 46 (Sen. Iris Martinez, D-Chicago/Rep. Kelly Burke, D-Oak Lawn) changes that language to allow FSSMC exam takers to receive whatever passing score is recommended by the test preparers.  These minimum scores are set nationally.  This change preserves the integrity of the certification while giving FSSMC seekers the flexibility that they need to get certified and transfer certification from another state.  In addition, the bill allows more restaurants that have corporate food handling programs certified in other states to transfer those programs to Illinois.

IRMA POSITION: SUPPORT

Brew PubsHB 3237 (Rep. Sara Feigenholtz, D-Chicago/ Sen. Antonio Munoz, D-Chicago)  provides clear guidance on the use of social media for advertising alcohol as well as increases the number of gallons a brew pub may sell directly to the public.

IRMA POSITION: SUPPORT

Liquor “Of Value” ProvisionsHB 4018 (Rep. Frank Mautino, D-Spring Valley/Sen. Antonio Munoz, D-Chicago) clarifies that alcoholic liquor can be packaged in combination with non-alcoholic products without violating the three-tier system.  In addition, it makes clear that manufacturers and distributors can furnish non-alcoholic merchandise to retailers for free as long as the merchandise is not tied to an alcoholic product.  The Illinois Liquor Control Commission had previously taken the heavy-handed position that furnishing items such as coolers to promote non-alcoholic products (e.g. sports drinks, bottled water, etc.) violated the Act.  Therefore this change was sought to clarify that such practices will not be considered as violating the prohibition of giving something “of value” to retailers to sell or promote the sale of alcoholic products.

IRMA POSITION: SUPPORT

Happy Hour, 100ft Rule Exemptions and Sunday SalesSB 398 (Sen. Antonio Munoz, D-Chicago/Rep. Sara Feigenholtz, D-Chicago) will give businesses some flexibility to have traditional happy hours and will clarify that meal and party packages with unlimited drinks for a set price are allowed by law.  The city of Chicago wrote tickets to hotels and restaurants on New Year’s Eve for violating Trade Practice Policies (TPP) written by the Illinois Liquor Control Commission (ILCC).  The TPPs have always been issued to describe “best practices” and have never been given the force of law.  A number of the restaurants and hotels that were cited for the practice have since sued the city and all of the cases that have reached a final decision have been decided in favor of the business.  SB 398 was written to address this issue and to allow licensees to serve discounted drinks for up to 4 hours/day for no more than 15 hours/week.  The bill will also include the following measures: (1) prohibits TPPs; (2) allows hotel restaurants under the same ownership to have one license and transfer liquor from one location to the other as long as the restaurants are in the same hotel; (3) deletes the Sunday sales prohibition, but will allow local jurisdictions to prohibit Sunday sales through local ordinances; (4) grants the local liquor commissioner the authority to provide an exemption to the 100 ft. rule so that businesses don’t have to seek the exemption from the state legislature, but preserves the business’ right to seek the exemption from the General Assembly if desired; (5) requires that all servers of alcohol be BASSET certified; (6) prohibits licensees from selling drinks “2 for 1”, from increasing the volume of a drink without proportionately increasing the price and from allowing drinking games. The changes to this bill represent agreements made between everyone involved in the 3-tier system.  They are common sense changes that allow retailers and restaurants to have flexibility and certainty in the sale of alcohol and, most importantly, to sell and serve it responsibly.

IRMA POSITION: SUPPORT

Food Establishment Self-InspectionsSB 1800 (Sen. Heather Steans, D-Chicago/Rep. Sara Feigenholtz, D-Chicago) will allow the City of Chicago to implement a self-inspection program for low-risk food establishments.  Qualifying food establishments would perform their own health inspections every two years which would then be randomly audited by the Department of Public Health.  The department will develop the inspection form and fines for noncompliance will be assessed.  The city has run a successful pilot program for the past couple of years, so this bill would make the program permanent and allow them to expand beyond current program participants.  Allowing low-risk food establishments to perform their own inspections allows the city to use its limited inspection resources wisely and cover more ground to ensure the safety of the food residents consume.  IRMA members have participated in the pilot program and we look forward to having more members qualify for the expanded program.

IRMA POSITION: SUPPORT

Snap EligibilitySB 1847 (Sen. Daniel Biss, D-Skokie/Rep. Robyn Gabel, D-Evanston) will allow more people in Illinois to qualify for SNAP benefits.  It is estimated that the bill will add 40,000 more SNAP cases (cases include individuals and families) to the program. Prior to 2013, Illinois had one of the most favorable SNAP distribution schedules in the country because it distributed benefits throughout the month.  After making some software changes in 2013 that were allegedly necessitated by the Affordable Care Act (ACA), the Department of Human Services (Department) elected to change SNAP distribution to the first 10 days of the month. Having a SNAP distribution system that is not spread throughout the month and creates substantial difficulties for grocers in high-SNAP areas, their employees, and customers. This change was particularly baffling because it was made after the USDA (the federal Department that issues SNAP benefits to the states) wrote a letter to all of the states encouraging them to distribute benefits throughout the month.  In response to the letter, a number of states began expanding their distribution beyond the first few days of the month.  Illinois was the only state to move in the opposite direction.  If the state were operating with a SNAP distribution system that worked for everyone involved, IRMA would not be opposed to adding more cases to the program.  Considering the present way that the Department is choosing to distribute benefits, we are opposed to adding more cases until a permanent solution to distribution is adopted.

IRMA POSITION: OPPOSE

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LABOR

Veterans Employment Preference—HB 3122 (Rep. Robert Pritchard, R-Sycamore/Sen. Michael Hastings, D-Matteson) creates the Veterans Preference in Private Employment Act. A private employer may adopt and apply a voluntary veterans’ preference employment policy if: (1) the veterans’ preference employment policy is in writing; (2) the veterans’ preference employment policy is publicly posted by the private employer at the place of employment or on any website maintained by the private employer; (3) the private employer’s job application informs all applicants of the veterans’ preference employment policy and where the policy may be obtained; and (4) the private employer applies the veterans’ preference employment policy uniformly for all employment decisions regarding the hiring or promotion of veterans or the retention of veterans during a reduction in force. A private employer who maintains a veterans’ preference employment policy may require and rely on an applicant’s or employee’s Department of Defense DD214/DD215 forms or their predecessor or successor forms, an applicant’s or employee’s NGB-22 discharge form or its predecessor or successor forms (if a member of the National Guard), and a U.S. Department of Veterans Affairs award letter (if the applicant or employee is claiming a service-connected disability) to establish eligibility for such policy.

IRMA POSITION: NEUTRAL

Equal Pay—The Equal Pay Act of 2003 (“Act”)prohibits employers with four or more employees from paying unequal wages to men and women for doing the same or substantially similar work, requiring equal skill, effort, and responsibility, under similar working conditions.  HB 3619 (Rep. Cynthia Soto, D-Chicago/Sen. Michael Noland, D-Elgin) would extend the requirements of the Act to include all employers. It also creates a two-tiered civil penalty that would subject employers with fewer than 4 employees that violates the Act is subject to penalties of $500 for a first offense; $2,500 for a second offense; and $5,000 for a third or subsequent offense. An employer with 4 or more employees is subject to penalties of $2,500 for a first offense; $3,000 for a second offense; and $5,000 for a third or subsequent offense.

IRMA POSITION: NEUTRAL

Small Business Regulatory Review—HB 3887 (Rep. Keith Wheeler, R-Aurora/Sen. Jennifer Bertino-Tarrant, D-Plainfield) requires each State executive agency to scrutinize its rules, administrative regulations, and permitting processes as they pertain to small businesses in order to identify those rules, regulations, and processes that are unreasonable, unduly burdensome, duplicative, or onerous to small businesses. Each State agency must submit its reports containing the results of its review to the Office of Business Permits and Regulatory Assistance, the Governor, and the General Assembly.

IRMA POSITION: SUPPORT

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LOSS PREVENTION

Accelerated Court ResolutionSB 202 (Sen. Bill Cunningham, D-Chicago/Rep. Michael Zalewski, D-Riverside) establishes a pilot program for Cook County which would provide an accelerated route to adjudication for persons accused of misdemeanor retail theft or criminal trespass.  This measure comes out of concerns raised by Cook County Sheriff Tom Dart about jails overcrowded with non-violent offenders who remain in jail for long periods of time awaiting trial because they cannot afford to bond out.  This bill will permit qualifying persons accused of the aforementioned crimes to either have a final adjudication of their case within 30 days of arrest or be allowed to bond out of jail on their own recognizance until their hearing date.  IRMA supported this bill because it addressed the crime of retail theft in a way that is fair to the victim without undermining the severity of retail theft.  Additionally, this bill substantively addresses the concerns of criminal justice reform advocates who want to ensure that persons sitting in jail awaiting trial are there because they are a potential threat to society and not simply because they are poor.

IRMA POSITION: SUPPORT

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PHARMACY

HeroinHB 1 (Rep. Lou Lang, D- Chicago/Sen. Dan Kotowski (D- Park Ridge) creates the nation’s most comprehensive approach to combating heroin and prescription drug abuse. HB 1 includes, but is not limited to, the following provisions: allows pharmacists to dispense opioid antagonists to someone claiming a heroin overdose pursuant to policies and procedures developed by the Illinois Department of Public Health; expands authority of the Illinois EPA to distribute grants for drug take-back programs; provides training for law enforcement, school officials, fire fighters, and others to administer opioid antagonists; IEPA shall establish a statewide medicine take-back program; the Department shall develop a poster and brochures for display and distribution in pharmacies regarding take-back information/events; expands utilization of the Prescription Monitoring Program (PMP); creates a peer review committee for prescribers and dispensers; and lowers the threshold where someone is potentially considered to be shopping for medicine from six prescribers or six pharmacies in one month to three prescribers or three pharmacies in one month.

IRMA POSITION: SUPPORT

BiosimilarsSB 455 (Sen. Tony Munoz, D- Chicago/Rep. Edward Acevedo, D- Chicago) regulates how and when biosimilars are substituted and notification provided to prescribers and patients. In short, a biologic can only be substituted with a biosimilar if the FDA has approved the biosimilar for substitution, the prescriber has not indicated “do not substitute’, and the patient is informed of the substitution. Additionally, within five business days of dispensing a prescribed biologic, the pharmacy must input the information into an interoperable electronic medical records system, an electronic prescribing technology, a pharmacy benefit management system, or a pharmacy record that can be electronically accessed by a prescriber. Entry into one of these systems is presumed to be notice to the prescriber. If the prescriber does not have electronic access, he/she must notify the pharmacy and the pharmacy must then transmit by other means.

IRMA POSITION: Support

Pharmacy Transfer to Physician Assistant—SB 689 (Sen. Matt Murphy, R-Palatine/Rep. Grant Wehrli, R-Naperville) allows a pharmacy or pharmacist to deliver prescription drugs to a licensed physician assistant who provides hospice services to a hospice patient or who provides home health services to a person, at the residence or place of employment of the person for whom the prescription was issued or at the hospital or medical care facility in which the patient is confined, or may drop off the prescription at a designated area determined by the patient or the patient’s agent. The physician assistant may possess controlled substances prescribed for an ultimate user if the physician assistant provides hospice services to a hospice patient who is the ultimate user or provides home health services to a person who is the ultimate user.

IRMA POSITION: NEUTRAL

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REGULATION AND LICENSING

Data SecuritySB 1833 (Sen. Daniel Biss, D-Skokie/Rep. Ann Williams, D-Chicago) changes what is currently considered “personal information” for the purposes of requiring notification to the consumer and/or the Attorney General if the information is breached.  Specifically, the bill charts new territory by requiring notification for breaches of “consumer marketing” and “geolocation” information.  After months of discussions with the Attorney General’s office, IRMA was able to negotiate several changes to the bill which, in total, removed IRMA’s opposition.  Some of the more important changes include:  narrowing the definitions of consumer marketing and geolocation information to more closely target specific behavior of concern to the Attorney General, removing the requirement to notify the individual when geolocation and consumer marketing information is breached, raising the threshold that triggers notification requirements and expanding the time allowed for businesses to notify individuals and/or the Attorney General when information is breached.  There were a number of other changes made in a good faith effort by the Attorney General’s office to address IRMA’s concerns.

IRMA POSITION: NEUTRAL

Data Security ResolutionSR 142 (Sen. Mattie Hunter, Chicago) recognizes that all industries including but not limited to financial, public, government, retail, manufacturing, medical, utilities, etc., suffer from data breaches. The resolution urges the federal government to focus on increased security measures for credit card data kept by all affected industries. As originally introduced, SR 142 left the impression that data breaches were largely a retail problem which would have left a false impression but was amended by the sponsor at the request of IRMA.

IRMA POSITION: NEUTRAL

Tobacco Retail Licensing Trailer BillHouse Bill 2494 was introduced and passed last year as P.A. 98-1055 and requires retailers to obtain a license to sell cigarettes. The legislation was introduced to reduce the sales of cigarettes to minors, illegal sales of contraband tobacco, and the illegal smuggling of cigarettes in Illinois. The license includes an annual fee that is intended to help fund the interdiction of smuggling and retail inspections. P.A. 98-1055 also included an employee training program, a merchant citation mitigation provision, and record keeping provisions.  HB 2513 (Rep. Marcus Evans, D-Chicago/ Sen. Julie Morrison, D-Deerfield) is a trailer bill that clarifies the provisions passed in P.A. 98-1055. Specifically, the legislation: (1) allows a waiver for records to be kept out of state; (2) broadens the employee training requirements; (3) allows the employee training to be conducted electronically; (4) provides an avenue to mitigate retail tobacco citations; and (5) provides a waiver for closed loop distribution invoice record keeping requirements.

IRMA POSITION: SUPPORT

Contraband CigarettesSB 509 (Sen. Antonio Munoz, D-Chicago/Rep. John Cabello, R-Loves Park) will allow cigarettes without the tax stamp of the local jurisdiction to be considered contraband and thus make retailers subject to penalties outlined in the Cigarette Tax Act.  The City of Chicago sought the change because the sale of cigarettes without the Chicago/Cook County tax stamp is on the rise and they wanted the option to impose stronger fines on retailers who are caught selling such unstamped packs of cigarettes.  The rise in the illegal sale of cigarettes is not only relegated to bad actors in the retail community, but increasingly, such sales are occurring in person-to-person sales controlled by local gangs.  The rise in the illegal sale of cigarettes seems to correspond to the tax increases that have occurred at the state and local levels over the past couple of years.  These tax increases have made the price of cigarettes more expensive than any other city in the country; a fact that is not lost on the growing underground market for unstamped cigarettes.

IRMA POSITION: NEUTRAL

Smart Phone Anti-Theft ActSB 66 (Sen. Ira Silverstein, D-Chicago) creates the Smart Phone Theft Protection Act and requires wireless communications device dealers to maintain a written record of every purchase or acquisition of a used wireless communications device for resale. The legislation provides that a law enforcement agency that has probable cause to believe a device has been stolen or is evidence of a crime may place an investigative hold on or confiscate the device. Additionally, the legislation requires the installation of video security cameras at a dealer’s physical location. Retailers with 25 or more locations are exempted from the requirements of this legislation.

IRMA POSITION: NEUTRAL

Drone Taskforce—As drones make their way from military application to commercial and personal uses, some foresee the need to plan for their widespread adoption. SB 44 (Sen. Julie Morrison, D-Deerfield/Rep. Brandon Phelps, D- Harrisburg) seeks to create the Unmanned Aerial System Oversight Task Force Act. The purpose of the Task Force is to “provide oversight and input into creating comprehensive laws and rules for the operation and use of drone technology within this State subject to federal oversight and regulation”. Assuming the bill is signed into law, the Governor has 90-days to complete the appointments to the Task Force. Currently, 17 people will serve on the Task Force including a representative of IRMA. The members of the Task Force must ‘consider commercial and private uses of drones, landowner and privacy rights, as well as general rules and regulations for the safe operation of drone, and prepare comprehensive recommendations for the safe and lawful operation of [drones] in this State”.  The Task Force must issue a report no later than July 1, 2016.

IRMA POSITION: SUPPORT

Conceal CarrySB 836 (Sen. John Sullivan, D-Quincy/Rep. Brandon Phelps, D-Harrisburg) amends the conceal carry law which went into effect last year.  Since the bill was signed into law, there have been a number of interested parties on both sides of the issue looking to amend the bill in any number of directions.  While it did not seem that there was much desire to actually change the law this soon after passage, SB 836 will make two changes that should be noted. First, the bill allows a person to purchase a firearm with a conceal carry license instead of the FOID card. We can expect the Illinois State Police to promulgate administrative rules implementing this new provision. Second, it also allows a person to transfer a loaded firearm from their person or inside the vehicle to the trunk while in a parking lot. Currently, the weapon must be unloaded prior to exiting the vehicle for placement into the trunk.

IRMA POSITION: NEUTRAL

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