Retailers File Temporary Restraining Order and Preliminary Injunction to Block Cook County’s Sweetened Beverage Tax

FOR IMMEDIATE RELEASE CONTACT:
June 27, 2017

CONTACT

Ryan McLaughlin, 312-969-0255
ryan@macstrategiesgroup.com

Retailers File Temporary Restraining Order and Preliminary Injunction to Block Cook County’s Sweetened Beverage Tax

Vague regulations and policy’s lack of uniformity violate the state’s constitution

SPRINGFIELD – Today, the Illinois Retail Merchants Association, on behalf of Cook County retailers, filed a temporary restraining order and is seeking a preliminary injunction in the Cook County Circuit Court challenging the sweetened beverage tax saying it violates the uniformity clause of the Illinois Constitution and is impermissibly vague. The ordinance is designed to place a penny-per-ounce tax on sweetened beverages and is poised to go into effect in only a matter of days on Saturday, July 1st. The lawsuit was filed by the law firm of Horwood Marcus & Berk who specialize in state and local tax as well as business and finance law.

The sweetened beverage tax creates classifications of taxable sweetened beverages that violate the uniformity clause of the state’s constitution, which requires taxing bodies to draw reasonable classes of taxable categories and imposes a uniform tax within the classes. Specifically, the ordinance taxes ready-to-drink, pre-made sweetened beverages, but generally excludes sweetened beverages made on demand. Not only are these sweetened beverages the same other than how they are served, but when considering the purpose of the ordinance, to promote public health and decrease obesity rates, the classification bears no reasonable relationship to accomplishing those goals. The argument can be made that Cook County has failed to meet the minimum standards in creating classes of taxable sweetened beverages.

Example of a violation of the uniformity clause:
A ready-to-drink sweetened iced tea served out of a chilled beverage urn is taxable, but a sweetened iced tea that is shaken behind the counter before giving it to the customer is not taxable. The beverages are substantially similar, except for the “shake” before giving it to the customer.

Additionally, the ordinance is impermissibly vague and fails to provide precise application under the circumstances it is intended to operate, creating a burden on retailers to accurately calculate the proper amount of tax.

Example of vagueness in the ordinance:
A retailer is responsible for collecting the Sweetened Beverage Tax for fountain sodas based on the amount it will sell in a certain-sized cup. In practice, however, by adding ice, the retailer is actually serving less sweetened beverage than the tax which was collected from the customer. A similar problem is possible in the refill context when the tax could be under-collected based on additional ounces consumed, with either scenario leaving the retailer legally exposed in an untenable situation.

Causing further complication, there has been an unavailability of guidance on the issue with the County changing the rules just days before the tax goes into effect making it impossible for retailers to properly implement in such quick order.

Ever-changing rules for SNAP may result in retailers being pushed out of program
SNAP does not allow a state or local unit of government to collect local sales taxes on purchases made under this program. Many retailers may not be able to correctly charge the Sweetened Beverage Tax, especially since the rules have been changed approximately two weeks prior to the date retailers must begin collecting the tax. If retailers do not comply they might be in jeopardy violating the terms of their SNAP contracts. In some cases, SNAP represents a significant portion of their business.

“As it stands, this ordinance is incomplete and it’s a perfect example of the disaster that awaits when policies are hurried through without serious thought to how they might impact the businesses that have to try to comply with these policies. To implement this tax correctly by the July 1 deadline is inconceivable with rules and regulations that are so poorly defined and continually changing. If enacted, Cook County retailers would be unfairly exposed to lawsuits for failure to comply and that’s a situation we’re not willing to accept for the retailers in Cook County,” said Rob Karr, president and CEO of IRMA.

Retailers are urging the court to block implementation of the ordinance due to the lack of clarity in how to properly apply and administer the tax and its unequal application.

 

About the Illinois Retail Merchants Association (IRMA)
One of the largest state retail organizations in the United States, IRMA serves as the voice of retailing and the business community in state government. Founded in 1957, IRMA represents more than 20,000 stores of all sizes and merchandise lines. From the nation’s largest retailers to independent businesses in every corner of the State, merchants count on IRMA to fight for the best possible environment in which to do business in Illinois.
About Horwood, Marcus & Berk
Horwood Marcus & Berk is a Chicago law firm that represents a wide range of clients from Fortune 500 corporations, to mid-sized and closely-held companies. While serving a number of different industries, the firm is specializing in state and local tax as well as business and finance law. In recent years, the firm has fought on the side of retailers in Qui tam lawsuits, which whistleblowers have used to unfairly target companies under the False Claims Act.

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BUSINESS GROUPS LABEL 2017 SESSION “ONE OF THE WORST FOR EMPLOYERS”

FOR IMMEDIATE RELEASE

May 31, 2017

CONTACT:

Ryan McLaughlin, 312-969-0255 | ryan@macstrategiesgroup.com

Rachel Peabody, 217-753-1761 | rachel@macstrategiesgroup.com

BUSINESS GROUPS LABEL 2017 SESSION “ONE OF THE WORST FOR EMPLOYERS”

Litany of anti-employer, job-killing measures rock employers

 

SPRINGFIELD – The state’s premier business groups have labeled the spring legislative session as “one of the worst for employers”, citing lawmaker’s apparent “race to the bottom” and litany of anti-employer, anti-job growth measures considered this year.

At a press conference on the final day of session, the Illinois Manufacturers’ Association, Illinois Retail Merchants Association, Chicagoland Chamber of Commerce, Illinois Chamber of Commerce and NFIB joined together lamenting the continuous effort to tax, over-regulate, mandate and constrict employers at every turn by lawmakers in both chambers which has created one of the most crushing business climates in the nation. While this is not a new phenomenon in Springfield, the massive uptick in these anti-employer measures coupled with the accompanying rhetoric has exasperated an already hostile business climate.

Ironically, many of these measures – in theory – are aimed at increasing pay, hiring more employees or giving workers more certainty, yet they achieve quite the opposite. While the intention of our business community is to provide jobs with competitive pay and generate revenue to fix the state’s problems, the anti-employer narrative is having a chilling effect.

“My Democrat friends like to say we are in a race to the bottom. Unfortunately, I’m here to tell you we are winning but that means Illinois businesses and families are losing. The high cost of workers’ compensation is one of the biggest issues facing manufacturers but lawmakers fail to act because they continually side with wealthy trial lawyers. Their failure to act and create an attractive economic climate means that Illinois will continue to bleed jobs and remain a laughingstock of the nation,” said Greg Baise, president and CEO, Illinois Manufacturers’ Association.

“Every day seems to bring another report of another round of retail store closings. Instead of talking restraint and recovery for the retail community, the narrative out of Springfield, like the actual actions in Chicago and Cook County, is higher taxes, labor and regulatory burdens, and, in the case of Cook County, incentivizing theft. This ‘campaign against Main Street retailers’ will only hasten the continued job loss and store closings that have become all too familiar. Retailers have limited responses; reduce employee hours, lay people off, increase automation, or close. Passing legislation to mandate artificially higher wages when the jobs don’t exist doesn’t help anyone,” said Rob Karr, president and CEO, Illinois Retail Merchants Association.

“The ping pong of anti-employer policies coming from both Chicago and Springfield is unsustainable. At every corner, Chicagoland businesses are being asked to pay higher property taxes, soda taxes, and sales taxes while also being forced to implement countless mandates that do not grow the economy. Chicago has so much to offer but this economic death by 1,000 paper cuts does not create the jobs, quality of life and revenue Springfield should be seeking,” said Michael Reever, Vice President of Government Affairs, Chicagoland Chamber of Commerce.

“Time and again lawmakers have suggested policies that shift greater financial burdens to employers statewide. Whether it is during the budget impasse or after it is resolved, standing up against job-crushing legislation is crucial for our economy. Increasing minimum wage, passing “fake” workers’ compensation reform and proposing a significant arbitrary tax increase is far from the progress Illinois deserves. We need pro-growth economic policies to prevent the steady decline of Illinois’ economic competitiveness. And we need them now, that is, if we want to continue to attract the best and the brightest individuals to Illinois,” said Todd Maisch, President and CEO, Illinois Chamber of Commerce

“Our members aren’t surprised by the legislature’s anti-business antics this session, but they are disappointed and fed up. Illinois is broke and we haven’t had a budget in two years. We need leaders who are less focused on scoring easy political points and more on enacting good policies that benefit all Illinoisans. We need legislators who will act like adults, set aside their political differences, and make the difficult decisions that would make things better for working families and allow businesses to grow and create jobs,” said Mark Grant, Illinois State Director, NFIB

Springfield’s Dirty Dozen

  1. SB 81: Legislation that raises the minimum wage to $15
  2. HB 2771: A costly government mandate forcing employers regardless of size to provide paid leave to every employee regardless of hours worked.
  3. HB 160: A $5,000 fee on every employer for the “privilege” of doing business in Illinois
  4. HB 156: Massive property tax shift onto commercial and industrial taxpayers
  5. SB 1502: Trial lawyer supported legislation that burdens every e-commerce business, and every company with a credit card, loyalty program app or website, without providing any consumer protections
  6. HB 3449: Trial lawyer supported legislation that unfairly targets companies that share or store location data and requires ecommerce businesses to ask for permission before collecting location data from your device
  7. HB 3538: Penalizes business that move even one job out of state while discouraging future investment
  8. HB 2802: Government mandate forcing businesses to pay the transportation costs of their workers
  9. HB 2525: This bill codifies “a cause” workers’ compensation standard that mandates insurance rate review without providing any meaningful reform
  10. HB 2622: Legislation that would disrupt the private workers’ compensation insurance market without having a strong reason to exist
  11. HB 3337: A bill that allows someone to steal $2,000 of merchandise from a retailer
  12. SB 9: Imposes $5.4 billion in new taxes on Illinois businesses and families – *revenue without reforms

Ignored Reforms of the 2017 Legislative Session

  • Pension reform
  • Workers’ compensation reform
  • Tax reform
  • Restraint of local government
  • Property tax relief
  • Education and workforce development

 

About the Illinois Manufacturers’ Association (IMA)

The Illinois Manufacturers’ Association is the only statewide association dedicated exclusively to advocating, promoting and strengthening the manufacturing sector in Illinois.  The IMA is the oldest and largest state manufacturing trade association in the United States, representing nearly 4,000 companies and facilities.

About The Illinois Retail Merchants Association (IRMA)

One of the largest state retail organizations in the United States, IRMA serves as the voice of retailing and the business community in state government. Founded in 1957, IRMA represents more than 23,000 stores of all sizes and merchandise lines. From the nation’s largest retailers to independent businesses in every corner of the State, merchants count on IRMA to fight for the best possible environment in which to do business in Illinois.

About the Chicagoland Chamber of Commerce

The Chicagoland Chamber of Commerce represents over 1,000 member companies, their 400,000 employees, and over $24 billion in revenue. We combine the power of our membership with our legacy of leadership and business advocacy to drive a dynamic economy. We focus on delivering value for our members, making Chicagoland a world-class place to live and work. Visit ChicagolandChamber.org

About the Illinois Chamber of Commerce

The Illinois Chamber of Commerce has been the unifying voice for Illinois business since 1919. The Chamber advocates prosperity and a pro-business climate in Illinois. www.ILChamber.org

About the National Federation of Independent Business (NFIB) Illinois

The National Federation of Independent Business (NFIB) Illinois is a chapter of America’s leading small business association, promoting and protecting the right of our members to own, operate and grow their businesses. NFIB represents 325,000 small businesses in all 50 states and Washington, D.C., and is dedicated to leveling the playing field with Big Business, Big Government, and Big Labor in every key area – taxes, healthcare, regulations, and more.

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IRMA Responds to House Passage of the Minimum Wage Bill

May 30, 2017

  CONTACT

Rachel Peabody, 217-753-1761 | rachel@macstrategiesgroup.com

Ryan McLaughlin, 312-969-0255 | ryan@macstrategiesgroup.com

IRMA Responds to House Passage of the Minimum Wage Bill  

SPRINGFIELD – The Illinois Retail Merchants Association (IRMA) issued the following statement regarding the passing of the minimum wage bill out of the Illinois House that seeks to increase the minimum wage in Illinois to $15.00 per hour by 2022.
“The political campaign to raise the minimum wage to $15 per hour has already resulted in reduced hours and eliminated positions in major cities where this has been enacted, including the City of Chicago. In fact, we have seen automation and self-service alternatives replace jobs due to continued efforts to artificially increase wages through government actions instead of working with employers. Quite simply, the state cannot bear another proposal that eliminates what little opportunity exists in Illinois. We urge lawmakers to show more restraint when making decisions that significantly impacts a businesses’ bottom line.”

Facts about the minimum wage:

  • Illinois’ minimum wage is already the highest in the Midwest. Illinois is poised to add another anti-competitive burden to retailers’ ability to compete with retailers in border states.
  • Raising the minimum wage will continue to keep people, especially teens, out of jobs. According to a January 2016 report from the University of Illinois at Chicago’s Great Cities Institute, only 12.4 percent of African Americans, 15 percent of Hispanic or Latinos and 24.4 percent of Whites (non-Hispanic or Latinos), ages 16 to 19 years old, are employed in Chicago. This destroys what little opportunity exists.
  • Minimum wage salaries are a floor, not a ceiling. Workers are not locked into minimum wage jobs, they have the ability to garner the necessary skills to advance and earn higher wages. Retail ranks are filled with those who started in minimum wage jobs.
  • Penalizes brick-and-mortar retailers over internet retailers. The minimum wage hike will not impact internet retailers, but penalize those retailers that invest in a physical property, workforce, pay property and sales taxes, etc.

 

About The Illinois Retail Merchants Association (IRMA)
One of the largest state retail organizations in the United States, IRMA serves as the voice of retailing and the business community in state government. Founded in 1957, IRMA represents more than 23,000 stores of all sizes and merchandise lines. From the nation’s largest retailers to independent businesses in every corner of the State, merchants count on IRMA to fight for the best possible environment in which to do business in Illinois.

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This Week in Springfield, – 100-16

In This Issue:

WHERE ARE WE NOW?
MINIMUM WAGE
PAID LEAVE
COMPENSATION HISTORY
WORKERS’ COMPENSATION
TELECOM MODERNIZATION
GEOLOCATION
RIGHT TO KNOW
EMPLOYEE TRANSPORTATION BENEFITS PROGRAM
CATFISH LABELING
FOOD ALLERGEN TRAINING

 

This Week In Springfield, the scheduled adjournment deadline of May 31st passed with the state no closer to the budget and economic reforms necessary to return Illinois to economic preeminence. Illinois has now gone over 700 days without a budget.

WHERE ARE WE NOW?

Based on the failure to yet again adopt a state budget, bond rating agencies awarded Illinois with yet another ignominious headline: lowest bond rating received by a state in US history. That puts Illinois literally one step above ‘junk bond’ status. The result is that Illinois’ borrowing costs will be significantly more expensive putting added pressure on the fiscal crisis. Illinois’ unpaid bill backlog now exceeds $14 billion. Additionally, there is little progress on reforms needed to return stability to Illinois. As IRMA has long noted, there is no stability without restraint. On the state level, that requires not only long term spending restraint but restraint on imposition of other unfunded cost mandates. The combination of tax increases and cost mandates can and will be crippling. Additionally, lawmakers must exercise their constitutional authority to impose restraint on local governments from doing the same. One need look no further than  the City of Chicago and Cook County and what they have done with devastating results particularly outside of the Loop and more affluent pockets.

As noted previously in TWIS, attempts at a bi-partisan ‘grand bargain’ failed to come to fruition in the Senate with each side pointing the figure at the other. The Senate Democrats eventually passed their own $37 billion budget (SB 6) funded by $5.4 billion in new revenue (SB 9). The House Democrats could not agree amongst themselves on the right combination of tax increases prior to June 1st. Among the numerous provisions they were considering was a minimum corporate income tax of $5,000 regardless of profitability as well as capping the Retail Discount. The latter is especially offensive as the retail sector has not special tax breaks/credits as do many other business sectors, the Discount is a reimbursement for services provided to the state and it is a partial reimbursement at best. The House appropriation committees will hold a series of budget-related hearings over the next few weeks starting next Thursday, June 8th. They hope is to get some sort of budget and tax package by the end of the state’s fiscal year on June 30th.

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MINIMUM WAGE

Compared to its border states, Illinois already has the highest minimum wage. Now Illinois is on the verge of having the highest in the nation, along with California and New York, as lawmakers passed a $15 minimum wage in the closing hours of the regular session.  SB 81 narrowly passed the House with a 61-53-2 vote and the Senate with a 30-23-2 vote.  The legislation increases the minimum wage from the current $8.25 to $15 by 2022. It also includes an income tax credit designed to appear to provide relief for employers with fewer than 50 employees. After decades of denial, this is the first time the proponents have admitted a minimum wage increase imposes costs. However, the proposed credit is so complicated as to effectively discourage its use.

It is clear the vote has little to do with realistically raising the minimum wage and more to do with the toxic political atmosphere that is consuming Illinois. The 2018 election cycle is already in full swing. As Democratic State Representative Scott Drury (D- Highwood) noted during debate on the House floor, the Democrats had majorities or super-majorities in the House and Senate as well as the governorship from 2008-2014 and did not pass a $15 minimum wage but did so with a Republican governor in office.

IRMA testified numerous times in opposition as well as organized the coalition in opposition. We will now turn our attention to attempting to secure a veto. What the proponents cannot address is how they expect employers to grow sales to account for the new mandates and taxes being imposed by local governments, and eventually the state, when tens of thousands of consumers are leaving Illinois each year.

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PAID LEAVE

HB 2771 SA #1 and SA #2 (Rep. Christian Mitchell, D-Chicago/Sen. Toi Hutchinson, D-Chicago Heights) seeks to impose paid leave requirements statewide. It narrowly passed the Senate 31-17 and is awaiting concurrence by the House. A significant flaw is that employers will not be able to tie benefits to their fiscal year.  Instead, companies will have to tie benefits and carry those benefits over either on January 1st or the date that the employee started working for the employer.

Changing how companies distribute benefits so that it will be more costly and complicated to administer may not be the goal of the advocates and sponsors, but it will be the result.  No other paid leave policy in the country, other than, of course, Chicago and Cook County, has such a mandate.  Only in Illinois are things made unnecessarily complicated.

IRMA opposes the substance of the bill that adds more costs to the employer without accounting for a corresponding increase in revenue to the business. Again, Illinois’ population continues to decline raising the question of who employers are expected to increase sales to account for these unfunded cost mandates. The House recessed without voting on the motion to concur. While the bill has had its deadline extended until June 30th, a super-majority will be required in the House meaning at least four Republicans will have to vote for it.

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COMPENSATION HISTORY

Illinois will soon prohibit an employer from viewing, asking about, or requesting the previous salary, wage, benefits or other compensation of any applicant for employment if, as expected, HB 2462 (Rep. Anna Moeller, D-Elgin/Sen. Daniel Biss, D-Skokie) is signed into law

While IRMA opposes discrimination in any form, there are legal questions surrounding prohibiting an employer from asking a prospective employee about previous wage and salary.  The City of Philadelphia passed an ordinance with similar language that prohibits an employer from asking a prospective employee about their previous wage and salary. Subsequent to passage, a lawsuit was filed in federal court on the grounds that the ordinance violates the First Amendment and the Commerce Clause of the United States Constitution.  If adopted, the Illinois statue would face the same deficiencies.  The statute prohibits a business from asking a simple question which in of itself does not discriminate or harm an individual so would not rise to the time, place, manner analysis which is required of a free speech prohibition. Additionally, the statute impacts commerce that takes place outside of Illinois boundaries. For instance, if a Missouri resident is interviewed in Missouri for a job in Illinois, does the statue apply? Or vice-versa, if an Illinois resident is interviewed in Illinois for a job in Missouri does the statute apply? If the answer is yes, then the statute arguably attempts to control activity outside of Illinois’ border and is subject to a federal Commerce Clause analysis. Additionally, the 9th U.S. Circuit Court of Appeals in California cited a 1982 ruling by the court that said employers could use previous salary information as long as they applied it reasonably and had a business policy that justified it.

Finally, the initiative assumes it will deter the bad actors from discriminating against a woman. Let us assume, for sake of argument that Company A is going to intentionally pay a woman less than a man for the same position. If the goal is to prevent Company A from paying the woman less, how does not knowing the previous salary of the prospective employee achieve that goal? Or consider the example of a woman who has a relatively high salary and shares her salary expectations with a prospective employer. Consider the other female candidate does not. Will the employer assume that the candidate who did not share her current salary information is paid less and make a corresponding offer? The bottom line is HB 2462 does not prevent someone from offering a lower wage to a woman for the same position then they would offer a man. If anything, it makes it easier therefore furthering what inequity exists rather than solving it.

Despite the aforementioned basic questions and concerns, HB 2462 (Rep. Anna Moeller, D-Elgin/Sen. Daniel Biss, D-Skokie) passed the House with a 91-24 vote and the Senate with a 35-18-1 vote and has been sent to the Governor for his signature.

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WORKERS’ COMPENSATION

Democratic lawmakers passed workers’ compensation reform that is expected to be vetoed by the Governor. HB 2525 (Rep. Jay Hoffman, D-Belleville/Sen. Kwame Raoul, D-Chicago) codifies current case law of “in the course of employment” & “arising out of the employment” maintaining the “any” cause standard established by the Sisbro Inc. v. Illinois Industrial Commission that has helped increase the cost of workers’ compensation.  It also codifies Venture-Newberg Prini Stone & Webster v. Illinois Workers’ Compensation Commission by establishing factors for determining traveling employee status and expands liability by also establishing a traveling employee through a reasonable and foreseeable standard.  It resolves the Will County Forest Preserve District v. Illinois Workers’ Compensation Commission that separated the shoulder from the arm when determining awards after one hundred years of precedence. Additionally, the legislation mandates insurance rate regulation increases fraud penalties, and adds new electronic billing penalty and new penalties for delay of authorization of medical care.  The legislation passed on a partisan Senate vote of 35-19 and House vote of 64-51.

Additionally, lawmakers passed HB 2622 (Rep. Laura Fine, D-Glenview/Sen. Daniel Biss, D-Skokie) that would take $10 million in employer money from the Workers’ Compensation Commission Operations Fund to create a state-run Illinois Employers Mutual Insurance Company to compete with the over 300  private insurance companies already competing in Illinois.  Illinois changed its workers’ compensation system in 2011 limiting payments for carpal tunnel syndrome and for employees who can still work but whose injuries force them into lower-paying jobs.  There was also a 30 percent cut to payments for doctors, hospitals and pharmacies treating those injured on the job.  As a result, Illinois experienced a 13 percent decline in workers’ compensation medical costs between 2010 and 2014.

Despite these changes, Illinois insurers’ and self-insured companies paid an estimated $2.75 billion in workers’ compensation benefits in 2014, according to the National Academy of Social Insurance. By contrast, employers in Indiana paid an estimated $589.2 million. Additionally, Illinois’ employers pay $2.23 for every $100 in payroll, while those in Indiana pay $1.05—the national median is $1.84. Today, Illinois is tied for having the eighth-most expensive premiums in the nation. Supporters of HB 2622 argue that workers’ compensation costs are still high for companies because insurance companies have not passed on the savings realized from the 2011 changes. They argue that in 2015, 332 insurance companies underwrote workers’ compensation policies in Illinois, more than in any other state, collecting $2.83 billion in premiums. In 2010, insurers reported losses of nearly 11 percent; four years later, they reported the same in profits. The insurance companies contend that while the 2011 changes likely decreased the insurers’ losses, insurers in Illinois only averaged 6.1 percent profit annually between 2011 and 2014.

HB 2622 passed the House with a partisan vote of 67-51 and the Senate with a vote of 32-20-1. Both initiatives are expected to be vetoed by the Governor.

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TELECOM MODERNIZATION

The telecommunication modernization bill passed both chambers In the waning hours of May 31st. SB 1839 (Sen. Bill Cunningham, D-Chicago/Rep. Brandon Phelps, D-Harrisburg) allows telecommunications carriers to stop spending resources on old copper wire infrastructure and instead focus all their resources on fully developing  a modern flexible telecommunications infrastructure that provides for today’s ever evolving mobile technologies.   It also includes an amendment that would stabilize Illinois’ 911 infrastructure.

The statute that currently implements the funding for 911 systems was set to expire on June 30th. If the statute expired, 911 call centers would be left without money for basic operations which would potentially have left Illinois residents without a 911 system. Rather than only extending the sunset, lawmakers also requested additional fees and taxes which included an increase in Chicago from $3.90 to $5 per phone line, assuming the City Council approves such an increase, and a downstate increase from 87 cents to $1.50 per phone.  The measure passed both chambers with overwhelming bipartisan support. Specifically, SB 1839 passed the House with a vote of 81-27-2 and the Senate with a vote of 53-3-1.

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GEOLOCATION

HB 3449 SA #4 and SA #5 (Rep. Ann Williams, D-Chicago/Sen. Thomas Cullerton, D-Villa Park) sought to require companies that use geolocation services to provide a way for persons to affirmatively consent to the use of those services if the company is collecting, disclosing or otherwise using the precise location of the customer for any purpose.  But this requirement would not apply to everyone.  In fact, the list of entities exempt from the bill is almost as long as the bill itselfThose exempted include political parties, political campaigns, candidates for public office, financial institutions, and private detective/alarm companies.  Altogether, the bill DOES NOT apply to the following entities:

  • covered entities subject to HIPAA,
  • financial institutions and affiliates subject to Gramm-Leach-Bliley,
  • internet, wireless and telecommunications service providers,
  • video service providers,
  • certain governmental entities,
  • persons licensed under the Private Detective, Private Alarm, Private Security, Fingerprint Vendor, and Locksmith Act of 2004,
  • persons licensed under the Land Surveyor Act
  • persons licensed under the Professional Engineering Services Act,
  • public utilities
  • candidate political committees,
  • political party committees,
  • political action committees,
  • ballot initiative committees; and
  • independent expenditure committees

All of the above entities CAN collect, use and disclose a person’s geolocation information without first obtaining their consent.

For everyone else, the consent must be obtained through a hyperlink or other action that will require the consumer to actively agree to the specific use.  Therefore, mentioning in the company’s privacy policy that geolocation services are used is not enough to satisfy the requirement in the bill.

This is yet another example of Illinois regulating where regulation wasn’t needed. The power to control geolocation services is already literally in the user’s hand.  Such services can be turned off on a person’s device both through each individual  app, through the phone or tablet itself, or both.  This bill is an unnecessary burden to businesses that have already given the user the choice to use geolocation services.  It will require that the user give his/her consent upon first time use of the app, and also give consent whenever there is a material change to the specific purposes for which the information is collected, used or disclosed.

IRMA was a part of a coalition of groups opposed to the bill.  After debate on adopting the concurrent amendments made in the Senate, the vote failed in the Cybersecurity, Data Analytics and IT Committee with a vote of 5-2-3.  IRMA would like to thank those who voted against this unnecessary regulation.

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  RIGHT TO KNOW

SB 1502 HA #1 (Sen. Michael Hastings, D-Frankfort/Rep. Art Turner, D-Chicago) is now known as the Illinois Right to Know Data Transparency and Privacy Protection Act although it confuses ‘personally identifiable’ and ‘personal information’.  While it has not yet passed, it establishes a troubling standard. This bill will require any company with an online presence that collects data from consumers to identify the categories of information collected.  Therefore, this bill will apply to most companies that have a website although it will not apply to companies with no physical presence in Illinois.  Companies will also have to provide a description of the customer’s rights if such information is shared or sold to 3rd parties.  In addition, the bill requires that companies who share or sell information to 3rd parties, unless it fits into an exemption, disclose what information was shared and with whom.  The bill sets out 26 categories of personal information that must, if shared, be highlighted.

The proposal seeks to expand what constitutes ‘personal information’ to the breaking point. Under the proposal, personal information could be a person’s age or a person’s educational background, etc.  There is no requirement that any of the information be tied to an actual person that could be identified.  As an example, if a manufacturer of washing machines asks each of the retailers that sell its products what the age of the purchaser is, this would viewed as ‘personally identifiable information’ even though it is not tied to any individual. There is no way that sharing personally unidentifiable information can be construed as personal that would require some heightened level of privacy or care.

After many rounds of negotiations, the bill now allows the company to choose to either respond directly to customer requests or generally list all categories of personal information that the company shares or sells about any customer and list all of the third parties that receive such information unless they qualify under an exemption.  This way, a company will not have to respond to each individual request and can make the choice to provide all of the information up front either in its privacy policy or elsewhere in its agreement with the customer.

SB 1502 is loosely based on the state of California’s “Shine the Light” law which is more narrowly focused in scope.  That law requires disclosure to persons that have an established business relationship if information is shared for direct marketing purposes.

The latest amendment also addresses an issue raised repeatedly by IRMA which would have required companies to enforce prohibitions on 3rd parties sharing information.  It deletes this requirement because it was basically unenforceable.  Lastly, it inserts a cure period of 15 days and adds yet another exemption, this time for hospitals.

Information should be able to be tied to an actual person if it is to be protected and considered personal.  IRMA maintains that this bill is an overreach that could and should be narrowed in scope.  The bill was called for a vote on the House floor and failed to receive enough votes to pass.  The sponsor moved for postponed consideration and now the deadline will be extended to June 30th.

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EMPLOYEE TRANSPORTATION BENEFITS PROGRAM

HB 2802 SA #2 (Rep. Theresa Mah, D-Chicago/Sen. Martin Sandoval, D-Cicero) seeks to require employers located in specific areas of the Regional Transportation Authority (RTA) with at least 25 or more full-time employees in those designated areas to set up a program that would allow all employees to take a pre-tax benefit in order to purchase their transit passes or to pay for parking at or near their place of business.  If the employee chooses not to take the benefit pre-tax, there will be no obligation by the employer to pay for the benefit outright.  The benefit would kick in for the first check issued after the employee has been on the job for 120 days.

This bill is based off of similar legislation that exists in New York City, Washington, DC and San Francisco.  Illinois would be the first state to pass such a mandate.  Companies are allowed to voluntarily participate in these programs today in Illinois, and the RTA and CTA have their own program set up for employers.

There has been significant push back from the employer community as this bill largely affects employers in Cook County.  Those same employers are currently working to implement a series of complicated and costly mandates recently leveled onto them by the city of Chicago and the Cook County Board.  Having to consider implementing another mandate is more than they can handle right now.  Especially, since more work could be done simply in marketing the RTA and CTA programs to employers.  The House sponsor has agreed to hold this issue while we continue to have talks during the summer about what more could be done to market the existing programs and understand the current challenges facing the employer community in Cook County and surrounding affected areas.  The latest amendment was unanimously adopted onto the bill in the Senate Transportation Committee with the understanding that we would continue to work on the issue over the summer.

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CATFISH LABELING

SB 312 (Sen. Emil Jones, III, D-Chicago/Rep. Melissa Conyears-Ervin, D-Chicago) will give the state Department of Public Health and local departments of public health the authority to check restaurant invoices to ensure that if catfish is featured on the restaurant’s menu, the restaurant can prove that it received catfish from a federally regulated processor or manufacturer.  The sponsor has expressed concerns that catfish served in some fried fish restaurants and soul food restaurants around the state are selling Vietnamese catfish, which must be labeled “Swai” according to federal law, but are labeling it “Catfish” on the restaurant menu.  If a consumer complaint is filed with the Department of Public Health, the inspector will check the invoices of the restaurant to see if it can prove that it indeed purchased catfish.  If proof cannot be produced, then the restaurant will be given time to correct the menu.  If the restaurant fails a second inspection, then a fine will be issued.  Further violations could result in suspension of the restaurant’s license.

The bill passed the House with a vote of 82-23-0 and, now that it has passed both houses, it will be sent to the Governor for approval.

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FOOD ALLERGEN TRAINING

Illinois joins Virginia, Massachusetts, Michigan and Maine as the only states that require additional food allergen training for restaurant workers. The current food safety sanitation manager certificate (FSSMC) training already contains a 90-minute segment that includes, but is not exclusively focused on, training on allergens.  HB 2510 (Rep. Sarah Feigenholtz, D-Chicago/ Sen. Antonio Munoz, D-Chicago) would require an individual receiving a FSSMC to receive and pay for a separate allergen training course.  The requirement only applies to local Illinois restaurants. Multi-state restaurants and franchisees are exempt if they have an internal food handling program on file with the Department of Public Health by August 1, 2017; if they have an internal food allergen training program that meets the requirements of the statute; or if they have a food allergen training program approved in another state.  The legislation passed the House with a 77-32 vote and the Senate with 34-16 vote and now goes to the Governor for his consideration.
 
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This Week in Springfield 100-15

SENATE DEMOCRATIC BUDGET
$15 MINIMUM WAGE
WORKERS’ COMPENSATION
PAID SICK LEAVE
GEOLOCATION
RIGHT TO KNOW
CATFISH LABELING
PRESCRIPTION SYNCHRONIZATION
FOOD HANDLING

This week in Springfield, attempts at a ‘grand bargain’ on a variety of issues in the Senate came to an end with the Senate Democrats adopting a go-it-alone approach while both chambers prepare to put politically sensitive wedge issues on the floor for votes during the waning days of session.

SENATE DEMOCRATIC BUDGET

 

After discussions between the Senate Democrat and Senate Republican negotiators broke down, the Senate Democrats passed a ‘go it alone’ approach that would provide $5.4 billion in new revenues (SB 9 Sen. Toi Hutchinson, D- Chicago Heights) intended to fund state spending of approximately $37.3 billion in a proposed budget (SB 6, Sen. Heather Steans, D- Chicago).

SB 9 provided that if revenues are expected to generate more than 2.4% of what was realized in the previous fiscal year, then the Governor must include in his budget monies to reduce the unpaid bills by the lesser of: (1) 50% of the revenues that exceed 2.4%, or (2) the revenues needed to reduce the unpaid bill backlog to $1 billion.  Additionally the individual income tax would be increased from 3.75% to 4.95%. The income tax on corporations would be permanently increased from 5.25% to 7.0%.  SB 9 also imposes a “means test” on the property tax credit, education expense tax credit, and the standard exemption. It creates a new $250 tax credit for instructional materials and supplies and increases the Earned Income Tax Credit (EITC) from 10% to 15%. The Research & Development (R&D) tax credit is permanently extended and modernized while the Manufacturers Purchase Credit and Graphic Arts exemption are merged into the Manufacturers Machinery & Equipment exemption and made permanent. Additionally, the Outer continental shelf exclusion, Non-combination rule, and Decouples from the Qualified Production Deduction were repealed.

The 6.25% sales tax on tangible personal property sold at retail would be expanded to include some services to consumers. The services included are: storage, landscaping, personal care (this does not include massage therapy, such services provided as part of medical care, or the styling, cutting, or coloring of hair), pest control, dry cleaning/laundry, and services provided by private alarm, private detective, or private security services. Business-to-business transactions are exempt as are legal, medical care, and accounting. Home rule cities and Cook County, that impose their own local sales tax, are allowed to tax services at the same rate they tax sales. As an example, if a municipality has a 2% sales tax, in addition to the state’s 6.25%, that municipality can apply their sales tax to the same services the state taxes. Satellite television would be taxed at 5% and video streaming services (e.g. Netflix, Amazon, Hulu, etc.) would be taxed at 1%.

SB 9 would reduce filing fees from $500 to $39 for filing organization (foreign), articles of incorporation (domestic) and from $750 to $59 for the same for limited liability companies. A loophole is closed that would allow local units of government to tax items by weight or volume. Additionally, the False Claims Act is amended to exclude from its provisions all taxes administered by the Illinois Department of Revenue.

The Senate Democrats did include some cuts in their proposed budget including a 10 percent cut for higher education, a 5% cut for state agencies, and a 15% reduction in the budgets of the offices of Governor and Lt. Governor. The budgets of the offices of Attorney General, Secretary of State, State Comptroller, and State Treasurer, all held by Democrats, were not reduced. Elementary and secondary education would receive an increase of $330 million.

Senate Bills 6 and 9 passed the Senate on partisan roll-calls and now advance to the House. SB 9 was picked up by Republican State Representative Jeannie Ives (R- Wheaton) so it is not expected to move as Rep. Ives is strictly anti-tax. SB 6 was picked up by State Representative Greg Harris (D- Chicago). However, it is expected that the House will make substantial changes to SB 6. What, if any, revenue bill the House produces remains to be seen.

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$15 MINIMUM WAGE

A $15 dollar minimum wage amendment was filed Friday and a vote is expected Monday.  House Amendment #1 proposes increasing the Illinois minimum wage on the following schedule:

  • January 1, 2018 – $9.00 per hour
  • January 1, 2019 – $10.00 per hour
  • January 1, 2020 – $11.25 per hour
  • January 1, 2021 – $13.00 per hour
  • January 1, 2022- $15.00 per hour

The aforementioned scheduled increases will apply to:

  • Employees 18 years of age or older; or
  • Employees under 18 years of age who work more than 650 hours for the employer during any calendar year.

Employees under 18 years of age who work less than 650 hours in any calendar year are to be paid as follows:

  • January 1, 2018 – $8.00 per hour
  • January 1, 2019 – $8.50 per hour
  • January 1, 2020 – $9.25 per hour
  • January 1, 2021 – $10.50 per hour
  • January 1, 2022 – $12.00 per hour

An income tax credit is proposed for any employer who employs fewer than 50 employees. The credit is equal to the maximum credit multiplied by the number of hours the employee worked during the year. The credit can be taken for reporting periods that begin on or after January 1, 2018 and end on or before (1) December 31, 2025 for employers that employ more than 5 employees during the applicable period; and (2) December 31, 2027 for employers that employ no more than 5 employees during the period. The credit cannot be claimed for an employee who works less than 90 consecutive days immediately preceding the reporting period. However, the credits can be accrued during that period and be claimed for future reporting periods after the employee has worked 90 consecutive days. However, the employer is not eligible for the credit for a reporting period unless the average wage paid by the employer per employee for all employees making less than $55,000 during the reporting period is greater than the average wage paid by the employer per employee for all employees making less than $55,000 during the same reporting period of the prior year. In other words, if an employer is forced to reduce hours or employees in order to afford the wage increases, the employer cannot claim the credit.

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WORKERS’ COMPENSATION

Democratic lawmakers in the Senate passed two bills related to workers compensation that move Illinois farther from needed reform. HB 2525 (Rep. Jay Hoffman, D-Belleville/Sen. Kwame Raoul, D-Chicago) codifies current case law of “in the course of employment” & “arising out of the employment” maintaining the “any” cause standard established by the Sisbro Inc. v. Illinois Industrial Commission that has helped increase the cost of workers’ compensation.  It also codifies Venture-Newberg Prini Stone & Webster v. Illinois Workers’ Compensation Commission by establishing factors for determining traveling employee status and expands liability by also establishing a traveling employee through a reasonable and foreseeable standard.  It resolves the Will County Forest Preserve District v. Illinois Workers’ Compensation Commission that separated the shoulder from the arm when determining awards after one hundred years of precedence. Additionally, the legislation mandates insurance rate regulation increases fraud penalties, and adds new electronic billing penalty and new penalties for delay of authorization of medical care.  The legislation passed on a partisan Senate vote of 35-19.  It failed to address the medical fee schedule, AMA standards, permanent partial disability, or temporary total disability.

The second bill, HB 2622 (Rep. Laura Fine, D- Glenview/Sen. Daniel Biss, D- Chicago) creates a new state-run workers’ compensation insurance program designed to compete with private insurance companies despite the fact Illinois has one of the most competitive insurance sectors in the nation. The Fund would be created using $10 million in employers monies, the same employers paying the 8th highest workers compensation costs in the nation.

HB 2525 passed 35-19-1 and returns to the House for additional consideration. HB 2622 passed 32-20-1 and moves to the Governor’s Desk for his consideration. Both bills passed with only Democratic votes.

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PAID SICK LEAVE

HB 2771 SA #1 and SA #2 (Rep. Christian Mitchell, D-Chicago/Sen. Toi Hutchinson, D-Chicago Heights) will require each employer to provide employees with up to 40 hours of paid sick leave in a 12-month period.  While the advocates claim that employers with more generous paid leave policies will not need to change those policies in order to conform to the requirements in the bill, that will only be true if the employer follows the minimum requirements laid out in the bill.  One of those requirements mandates that benefits start and roll over either on the start date of the employee or at the beginning of the calendar year.  There are many employers who tie benefits to their fiscal year or some other date set by the company.  If that is the case, then those employers will have to change their policies so that benefits are tied to the dates outlined in the bill.  From the very beginning, IRMA has asked for this section to be changed so as not to completely disrupt the way benefits are given by companies that are already giving employees more than 40 hours of paid sick leave.  In fact, no other paid leave policy has such a mandate.

It has never been explained why there is hesitancy to make this very simple change that would save employers time and money and would be seamless to employees without diminishing their benefits.  If there is going to be a mandate on employers at this difficult time in our economy, more steps should be taken to ensure that employers are not unnecessarily saddled with arbitrary and unnecessary additional costs and operational burdens.

The Senate Labor Committee voted 12-4-0 to pass an amendment that exempts rail companies and clarifies the definition of healthcare providers, but that does not address our substantive issue.  The bill will now be considered on the Senate floor.

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GEOLOCATION

HB 3449 SA #4 and SA #5 (Rep. Ann Williams, D-Chicago/Sen. Thomas Cullerton, D-Villa Park) would require companies that use geolocation services to provide a way for persons to affirmatively consent to the use of those services if the company is collecting, disclosing or otherwise using the precise location of the customer for any purpose even though the power to opt-out is already at each person’s finger-tips.  But this mandate doesn’t apply to everyone.  In fact, the list of persons exempt from the bill is almost as long as the bill itself.  Yet, no viable reason was given as to why such exemptions should exist.  Among those excluded from the mandate include, banks and candidates for public office, political parties and campaigns.  Altogether, the bill DOES NOT apply to the following entities:

  • covered entities subject to HIPAA,
  • financial institutions and affiliates subject to Gramm-Leach-Bliley,
  • internet, wireless and telecommunications service providers,
  • cable and video service providers,
  • certain governmental entities,
  • persons licensed under the Private Detective, Private Alarm, Private Security, Fingerprint Vendor, and Locksmith Act of 2004,
  • persons licensed under the Land Surveyor Act
  • persons licensed under the Professional Engineering Services Act,
  • public utilities
  • candidate political committees,
  • political party committees,
  • political action committees,
  • ballot initiative committees; and
  • independent expenditure committees

All of the above entities can collect, use and disclose a person’s geolocation information without first obtaining their consent.

For everyone else, the consent must be obtained through a hyperlink or other action that will require the consumer to actively agree to the specific use.  Therefore, mentioning in the company’s privacy policy that geolocation services are used is not enough to satisfy the requirement in the bill.

It is widely understood that the power to control geolocation services is already literally in the user’s hand.  Such services can be turned off on a person’s device both through the app and through the phone or tablet.  This bill is an unnecessary burden to businesses that have already given the user the choice to use geolocation services.  It will require that the user give his/her consent upon first time use of the app, and also give consent whenever there is a material change to the specific purposes for which the information is collected, used or disclosed.

IRMA was a part of a coalition of groups opposed to the bill that offered language to narrow the bill to geolocation services that were employed outside of the ordinary course of business, but the language was rejected.  The bill passed out of the Senate Judiciary Committee with a vote of 8-3-0 was moved to the Senate floor and passed with a vote of 33-22-0.  It has now moved to the House for a concurrence vote.

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RIGHT TO KNOW

SB 1502 HA #1 (Sen. Michael Hastings, D-Frankfort/Rep. Art Turner, D-Chicago) is now known as the Illinois Right to Know Data Transparency and Privacy Protection Act.  This bill will require any company with an online presence that collects data from consumers to identify the categories of information collected.  Companies will also have to provide a description of the customer’s rights if such information is shared or sold to 3rd parties.  In addition, the bill requires that companies who share or sell information to 3rd parties, unless it fits into an exemption, disclose what information was shared and with whom.  The bill sets out 26 categories of personal information that must, if shared, be highlighted.

It is important to note that “personal information” doesn’t mean that the information is “personally identifiable”.  These are really two different concepts.  Personal information could be a person’s name, or a person’s age or a person’s educational background, etc.  There is no requirement that any of the information be tied to an actual person that could be identified.  For example, if a retailer shares the ages of purchasers of a certain washing machine with its manufacturer, but it doesn’t share the customer’s names or any other information that could identify that person, that information is still considered “personal information” in the bill and would need to be disclosed.  It doesn’t matter that the third party has no idea who the actual customers were that purchased the washing machine.  SB 1502 requires that unnecessary time, money and resources be spent on providing information that does nothing to protect a person’s privacy.

After many rounds of negotiations, the bill will now allow the company to choose to either respond directly to customer requests or generally list all categories of personal information that the company shares or sells about any customer and list all of the third parties that receive such information unless they qualify under an exemption.  This way, a company will not have to respond to each individual request and can make the choice to provide all of the information up front either in its privacy policy or elsewhere in its agreement with the customer.

SB 1502 is loosely based on the state of California’s “Shine the Light” law which is more narrowly focused in scope.  That law requires disclosure to persons that have an established business relationship if information is shared for direct marketing purposes.  SB 1502 has no such qualifiers.  In fact, instead of using the definition of personal information as defined by the Personal Information Protection Act (PIPA) which requires that personal information actually be personally identifiable, this bill creates a completely new definition by making any piece of information, whether tied to a person or offered in the aggregate, “personal.”  We would also note that information must be disclosed, even if a person shares the information themselves.  For instance, if a person has a LinkedIn account and they post their picture, name, educational background, etc. for the entire LinkedIn universe to see, a company must disclose if they have also shared the same information that can be found by a simple Google search.

The latest amendment also addresses an issue raised repeatedly by IRMA which would have required companies to enforce prohibitions on 3rd parties sharing information.  It deletes this requirement.  Lastly, it inserts a cure period of 15 days and exempts hospitals.

Information should be able to be tied to an actual person if it is to be protected and considered personal.  IRMA maintains that this bill is an overreach that could and should be narrowed in scope.  The bill passed out of the House Consumer Protection Committee by a vote of 3-2-0 and will now be sent to the floor for further consideration.

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CATFISH LABELING

SB 312 (Sen. Emil Jones, III, D-Chicago/Rep. Art Turner, D-Chicago) will give the state Department of Public Health and local departments of public health the authority to check restaurant invoices to ensure that if catfish is featured on the restaurant’s menu, the restaurant can prove that it received catfish from a federally regulated processor or manufacturer.  The sponsor has concerns that catfish served in some fried fish restaurants and soul food restaurants around the state are selling Vietnamese catfish, which must be labeled “Swai” according to federal law, but are labeling it “Catfish” on the restaurant menu.  If a consumer complaint is filed with the Department of Public Health, the inspector will check the invoices of the restaurant to see if it can prove that it indeed purchased catfish.  If proof can’t be produced, then the restaurant will be given time to correct the menu.  If the restaurant fails a second inspection, then a fine will be issued.  Further violations could result in suspension of the restaurant’s license. The bill passed unanimously out of the House Consumer Protection Committee and will now be considered on the House floor.

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PRESCRIPTION SYNCHRONIZATION

 

HB 2957 (Rep. Laura Fine, D-Glenview/Sen. John Mulroe, D-Chicago) creates prescription synchronization for patients who have multiple prescriptions. This adherence is extremely important for patients on multiple maintenance prescriptions for chronic conditions (e.g. diabetes, blood pressure, cholesterol, etc.). Having different refill dates can make adherence challenging. SB 1546 allows for the coordination of refill dates (a.k.a. med sync) to increase adherence. SB 1546 requires insurers to allow patients who are on 2 or more maintenance prescriptions for a chronic condition to allow synchronization at least once per year. Med sync is not available for controlled substances. This is initiative passed the Senate unanimously with a 57-0-0 vote and will be sent to the Governor for his consideration. IRMA would like to thank both Rep. Laura Fine and Sen. John Mulroe for their work in providing safety and adherence protocols to individuals with chronic conditions.

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FOOD HANDLING

HB 3684 (Rep. Kelly Burke, D-Oak Lawn/Sen. David Koehler, D-Peoria) removes an obsolete fee paid by restaurant and grocery retail workers.  Illinois is one of only a few states that require a separate food handling certificate and fee in addition to a national food handling certificate. Currently, under Illinois law, an individual must complete an Illinois Department of Public Health (IPDH) approved training program and then pass an exam provided by an accredited exam provider. Once the individual pays for and passes the exam and receives the national certificate, he/she is required to electronically send the national certificate to the state and pay an additional $35 for a redundant Illinois-specific certificate. When the Food Handling Regulation Enforcement Act was initially implemented, Illinois drafted, maintained, amended, mailed and graded their own examination. As such, an administrative justification existed for an additional fee. This Illinois specific exam no longer exists, therefore the administrative expenses no longer exist.  HB 3684 passed both Houses unanimously and will be sent to the Governor for his consideration. IRMA would like to thank both Rep. Kelly Burke and Sen. David Koehler for streamlining the food handling statute while providing common sense relief to retail workers.

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