The Governor of Illinois signed HB 218 on Monday, August 14, which went into effect immediately. The legislation added Section 815 ILCS 505/2BBB to the Illinois Compiled Statutes.  The new law contains several ambiguous provisions designed to eliminate the safeguards provided by the Protection of Lawful Commerce in Arms Act and inflict serious – and potentially decisive – financial harm on firearms industry members.  Among the provisions of the Act:

• It is an unlawful practice for a firearm industry member to “knowingly create, maintain, or contribute to a condition in Illinois that endangers the safety or health of the public by conduct either unlawful in itself or unreasonable under all circumstances…”
• It is an unlawful practice for a firearm industry member to “advertise, market, or promote a firearm-related product in a manner that reasonably appears to…recommend, or encourage individuals to engage in unlawful paramilitary or private militia activity in Illinois…”
• It is an unlawful practice for a firearm industry member to “advertise, market, promote, design, or sell any firearm-related product in a manner that reasonably appears to support, recommend, or encourage persons under 18 years of age to unlawfully” [use a firearm-related product] and in so determining whether any firearm industry member’s conduct would so “reasonably appear” to support such conduct the court should consider the following:
  • Whether the marketing or advertising uses caricatures that reasonably appear to be minors or cartoon characters
    Whether the firearm industry member offers merchandise for minors, including clothing, toys, games, or stuffed animals that promote the industry member
  • Whether the industry member offers “firearm-related products” in sizes, colors, or designs that appeal to minors
    Whether the industry member has a marketing, advertising, or promotional campaign designed with the intent to appeal to minors
  • Whether the firearms industry member uses images or depictions of minors in advertising or promotional material
    (This provision purports to permit promotional materials regarding “lawful recreational activity” with a firearm)

Reading through the new law one can see that there are many references to “reasonable” and “unreasonable” conduct.  The troubling issue for the industry is that reasonableness is often a matter to be decided by the judge or jury.  This generally means that potential liability or lack thereof is often not determined until tens or hundreds of thousands of dollars are spent on attorneys’ fees litigating these matters.  Industry members should be closely reviewing not only their sales and distribution practices but also their marketing and promotional materials to avoid as much as possible raising any doubt about running afoul of such laws and exposing themselves to risk of litigation.

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