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| Public Act 095-0240 |
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AN ACT concerning business.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Beer Industry Fair Dealing Act is amended by | ||||
changing Sections 1.1 and 5 as follows:
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(815 ILCS 720/1.1) (from Ch. 43, par. 301.1)
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Sec. 1.1. As used in this Act:
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(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.
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(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,
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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.
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(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.
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(4) "Brewer" means a person who is engaged in the | ||
manufacture of beer,
a master distributor as defined in this
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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
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the trademark, brand, or name of beer.
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(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.
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(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
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business.
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(6) "Successor Brewer" means any person who in any way
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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.
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(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.
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(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.
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(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
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this Act or in violation of any law or regulation.
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(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.
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(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.
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(12) "Affected party" means a wholesaler, brewer, master | ||
distributor,
successor brewer, or any person that is a party to | ||
an agreement.
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(13) "Signs" means signs described in Section 6-6 of the | ||
Liquor Control
Act of 1934.
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(14) "Advertising materials" means advertising materials | ||
described in
Section 6-6 of the Liquor Control Act of 1934.
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(Source: P.A. 90-373, eff. 8-14-97; 91-247, eff. 7-22-99.)
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(815 ILCS 720/5) (from Ch. 43, par. 305)
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Sec. 5. Prohibited conduct. No brewer shall:
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(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
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between the brewer and the wholesaler, or by any other | ||
means.
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(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.
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(3) Directly or indirectly fix or maintain
the price at | ||
which a wholesaler may resell beer.
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(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.
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(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.
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(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.
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(7) Require a wholesaler to assent to any requirement
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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.
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(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.
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(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
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agreement that does not comply with this Act and
the laws | ||
of this State.
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(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.
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(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.
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(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
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accordance with this Act.
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(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.
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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.
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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.
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(Source: P.A. 90-373, eff. 8-14-97; 91-247, eff. 7-22-99.)
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Section 99. Effective date. This Act takes effect upon | ||
becoming law.
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