Firearms industry could face lawsuits for deceptive marketing under new law

A new law in Illinois restricts the way gun dealers and manufacturers can market and sell their products and subjects them to civil penalties for violations.

Gov. JB Pritzker on Saturday signed House Bill 218 into law. Labeled the Firearm Industry Responsibility Act, it took effect immediately.

“We hold opioid manufacturers accountable. Vaping companies accountable. Predatory lenders accountable. Gun manufacturers shouldn’t get to hide from the law – and now, they won’t be able to. Here’s to an Illinois where everyone feels safe in every corner of our great state,” Pritzker said in a statement.

The signing coincided with Pritzker’s appearance Saturday at the Everytown for Gun Safety annual conference in Chicago and came a day after the Illinois Supreme Court upheld a state law banning high-powered weapons and high-capacity magazines.

Under a federal law known as the Protection of Lawful Commerce in Arms Act, or PLCCA, the gun industry is generally shielded from lawsuits when someone uses their product to commit a crime.

But state Rep. Jennifer Gong-Gershowitz, D-Glenview, who sponsored the bill in the House, said during floor debate in May that PLCCA does not shield the industry from other consumer protection laws. The main purpose of the bill, she said, was to clarify that the gun industry is subject to Illinois’ Consumer Fraud and Deceptive Business Practices Act.

“The Consumer Fraud Act has been used effectively when cracking down on … pharmaceutical marketing fueling the opioid epidemic, by big tobacco companies using Joe Camel to market to children,” Gong-Gershowitz said during floor debate. “This makes clear what constitutes unfair and deceptive conduct under the Consumer Fraud Act.”

Under the law, gun dealers and manufacturers can be sued, either by the state or private individuals, for marketing firearms, accessories and related products in a way that promotes illegal paramilitary or private militia activity in Illinois.

Related: Illinois Supreme Court upholds assault-style weapons ban, more challenges to follow

They can also be sued for marketing practices that encourage people under age 18 to illegally possess, purchase or use firearms and related products. That includes using images or depictions of minors in marketing material, placing ads in publications that primarily cater to minors, using cartoon characters in their advertising, and offering brand name merchandise to minors such as clothing, toys or stuffed animals.

It also has a broad prohibition against creating or contributing 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,” such as failing to use “reasonable controls” to prevent sales to straw purchasers or anyone prohibited by law from possessing firearms.

“This bill goes too far,” Rep. Dan Ugaste, R-Geneva, said on the House floor in May. “It's vague. It really has nothing to do with consumer fraud or deceptive practices by business. We should look to correct those things we need to within this House but not overreach solely because we believe we can.”

The bill passed both chambers of the General Assembly with only Democratic support: 71-40 in the House and 34-22 in the Senate.

Pritzker’s signing of the bill drew praise from gun control advocacy groups such as the Gun Violence Protection PAC and Brady United Against Gun Violence. But it drew criticism from Republican lawmakers, including Sen. Terri Bryant, of Murphysboro.

“This law will do absolutely nothing to curb violence and will only further limit law-abiding citizens’ access to their constitutional right by attempting to put the firearm industry out of businesses,” Bryant said in a statement. “It goes after the wrong people. If we really wanted to target bad actors, we’d be more focused on going after gun traffickers and straw purchasers to stop the flow of illegal guns getting into the hands of dangerous, violent individuals.”

On Monday, a Connecticut-based gun rights advocacy group filed suit against the law in the Southern District of Illinois. National Shooting Sports Foundation, Inc., claims in their suit that both PLCCA and the U.S. Constitution are in direct contradiction with the law and is seeking an injunction from the court.

"HB 218 regulates selling, manufacturing, and advertising lawful (and constitutionally protected) firearms and related products," NSSF wrote in their suit, "In other words, HB 218 regulates commerce in and speech relating to arms—even when that commerce and speech takes place entirely outside of Illinois, as will often be the case."

NSSF sued the state for its assault-style weapons ban earlier this year in the same district court, later winning an injunction in its consolidated case.

Reporter Patrick Keck of The State Journal-Register contributed to this report.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to hundreds of print and broadcast outlets statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation, along with major contributions from the Illinois Broadcasters Foundation and Southern Illinois Editorial Association.

This article originally appeared on State Journal-Register: New law opens firearms industry to lawsuits for deceptive marketing