Public Act 095-0240
 
HB1084 Enrolled LRB095 09966 LCT 30179 b

    AN ACT concerning business.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Beer Industry Fair Dealing Act is amended by
changing Sections 1.1 and 5 as follows:
 
    (815 ILCS 720/1.1)  (from Ch. 43, par. 301.1)
    Sec. 1.1. As used in this Act:
    (1) "Beer" means a beverage obtained by the alcoholic
fermentation of an infusion or concoction of barley, or other
grain, malt, and hops in water, and includes, among other
things, beer, ale, stout, lager beer, porter and the like. For
purposes of this Act only, the term "beer" shall also include
malt beverage products containing less than one-half of 1% of
alcohol by volume and marketed for adult consumption as an
alternative beverage to beer.
    (2) "Agreement" means any contract, agreement,
arrangement, operating standards, or amendments to a contract,
agreement, arrangement, or operating standards, the effect of
which is to substantially change or modify the existing
contract, agreement, arrangement, or operating standards,
whether expressed or implied, whether oral or written, for a
definite or indefinite period between a brewer and a wholesaler
pursuant to which a wholesaler has been granted the right to
purchase, resell, and distribute as wholesaler or master
distributor any brand or brands of beer offered by a brewer.
The agreement between a brewer and wholesaler shall not be
considered a franchise relationship.
    (3) "Wholesaler" or "beer wholesaler" means any person,
other than a manufacturer licensed under The Liquor Control Act
of 1934, who is engaged in this State in purchasing, storing,
possessing or warehousing any alcoholic liquors for resale or
reselling at wholesale, whether within or without this State.
    (4) "Brewer" means a person who is engaged in the
manufacture of beer, a master distributor as defined in this
Section, a successor brewer as defined in this Section, a
non-resident dealer under the provisions of the Liquor Control
Act of 1934, a foreign importer under the provisions of the
Liquor Control Act of 1934, or a person who owns or controls
the trademark, brand, or name of beer.
    (4.5) "Brand" means any word, name, group of letters,
symbols, or any combination thereof that is adopted and used by
a brewer to identify a specific beer product and to distinguish
that beer product from another beer product.
    (4.7) "Brand extension" means any brand that incorporates
all or a substantial part of the features of a pre-existing
brand of the same brewer and that relies to a significant
extent on the good will associated with the pre-existing brand.
    (5) "Master Distributor" means a person who, in addition to
being a wholesaler, acts in the same or similar capacity as a
brewer or outside seller of one or more brands of beer to other
wholesalers on a regular basis in the normal course of
business.
    (6) "Successor Brewer" means any person who in any way
obtains the distribution rights that a brewer or master
distributor once had to manufacture or distribute a brand or
brands of beer whether by merger, purchase of corporate shares,
purchase of assets, or any other arrangement.
    (7) "Person" means a natural person, partnership,
corporation, trust, agency, or other form of business
enterprise. Person also includes heirs, assigns, personal
representatives and guardians.
    (8) "Territory" or "sales territory" means the geographic
area of primary sales responsibility designated by an agreement
between a wholesaler and brewer for any brand or brands of the
brewer.
    (9) "Good cause" exists if the wholesaler or affected party
has failed to comply with essential and reasonable requirements
imposed upon the wholesaler or affected party by the agreement.
The requirements may not be discriminating either by their
terms or in the methods of their enforcement as compared with
requirements imposed on other similarly situated wholesalers
by the brewer. The requirements may not be inconsistent with
this Act or in violation of any law or regulation.
    (10) "Good faith" means honesty in fact and the observance
of reasonable commercial standards of fair dealing in the trade
as defined and interpreted under Section 2-103 of the Uniform
Commercial Code.
    (11) "Reasonable standards and qualifications" means those
criteria applied by the brewer to similarly situated
wholesalers during a period of 24 months before the proposed
change in manager or successor manager of the wholesaler's
business.
    (12) "Affected party" means a wholesaler, brewer, master
distributor, successor brewer, or any person that is a party to
an agreement.
    (13) "Signs" means signs described in Section 6-6 of the
Liquor Control Act of 1934.
    (14) "Advertising materials" means advertising materials
described in Section 6-6 of the Liquor Control Act of 1934.
(Source: P.A. 90-373, eff. 8-14-97; 91-247, eff. 7-22-99.)
 
    (815 ILCS 720/5)  (from Ch. 43, par. 305)
    Sec. 5. Prohibited conduct. No brewer shall:
        (1) Induce or coerce, or attempt to induce or coerce,
    any wholesaler to engage in any illegal act or course of
    conduct either by threatening to amend, modify, cancel,
    terminate, or refuse to renew any agreement existing
    between the brewer and the wholesaler, or by any other
    means.
        (2) Require a wholesaler to assent to any unreasonable
    requirement, condition, understanding or term or an
    agreement prohibiting a wholesaler from selling the
    product of any other brewer or brewers.
        (3) Directly or indirectly fix or maintain the price at
    which a wholesaler may resell beer.
        (4) Fail to provide to each wholesaler of its brands a
    written contract which embodies the brewer's agreement
    with its wholesalers and conforms to the provisions of this
    Act.
        (5) Require any wholesaler to accept delivery of any
    beer, signs, advertising materials, or any other item or
    commodity which has not been ordered by the wholesaler, or
    require any wholesaler to accept a common carrier for
    delivery of beer into this State unless the wholesaler
    consents to the common carrier. In the event a brewer
    adopts a uniform practice of delivering beer into this
    State to the premises of all licensed wholesalers, the
    brewer may select the common carrier in this State.
        (6) Require a wholesaler without the wholesaler's
    approval to participate in an arrangement for the payment
    or crediting by an electronic fund transfer transaction for
    any item or commodity other than beer or to access a
    wholesaler's account for any item or commodity other than
    beer.
        (7) Require a wholesaler to assent to any requirement
    prohibiting the wholesaler from disposing, after notice to
    the brewer, of a product which has been deemed salvageable
    by a local or State health authority. Nothing herein shall
    prohibit the brewer from having the first right to purchase
    the salvageable product from the wholesaler at a price not
    to exceed the original cost of the product or to
    subsequently repurchase the product from the insurance
    company or salvage company.
        (8) Refuse to approve or require a wholesaler to
    terminate a manager or successor manager without good
    cause. A brewer has good cause only if the person
    designated as manager or successor manager by the
    wholesaler fails to meet reasonable standards and
    qualifications.
        (9) Present an agreement to a wholesaler that attempts
    to waive compliance with any provision of this Act or that
    requires the wholesaler to waive compliance with any
    provision of this Act. No brewer shall induce or coerce, or
    attempt to induce or coerce, any wholesaler to assent to
    any agreement, amendment, renewal, or replacement
    agreement that does not comply with this Act and the laws
    of this State.
        (10) Terminate or attempt to terminate an agreement on
    the basis that the wholesaler refuses to purchase signs or
    advertising materials or any quantity or types thereof.
        (11) Discriminate against a wholesaler who has entered
    into a contract relative to signs or advertising materials
    by not making signs or advertising materials or any
    quantity or types thereof available to the wholesaler when
    the brewer makes available such signs or advertising
    materials to other similarly situated wholesalers in this
    State.
        (12) Present an agreement requiring the wholesaler to
    arbitrate all disputes without offering the wholesaler in
    writing the opportunity to reject arbitration and elect to
    resolve all disputes by maintaining a civil suit in
    accordance with this Act.
        (13) Fail to assign brand extensions to a wholesaler
    who has been granted the territory to the brand from which
    the brand extension resulted and agrees to accept the brand
    extension; however, this requirement does not apply if the
    wholesaler is not in compliance with the agreement at the
    time the brewer offers the brand extension to the
    wholesaler.
    No brewer who, pursuant to an agreement with a wholesaler
which does not violate antitrust laws, has designated a sales
territory for which the wholesaler is exclusively primarily
responsible or in which the wholesaler is required to
concentrate its efforts, shall enter into an agreement with any
other wholesaler for the purpose of establishing an additional
wholesaler for the brewer's brand, or brands, or brand
extension in the territory. in all or part of the same
territory.
    No wholesaler who, pursuant to an agreement is granted a
sales territory for which it shall be exclusively primarily
responsible or in which it is required to concentrate its
efforts, shall make any sale or delivery of beer to any retail
licensee whose place of business is not within the territory
granted to the wholesaler.
(Source: P.A. 90-373, eff. 8-14-97; 91-247, eff. 7-22-99.)
 
    Section 99. Effective date. This Act takes effect upon
becoming law.