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  The ILCC Legal Division

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TPP-40:
Introduction of new spirits products

Parties wishing to introduce new spirits products in the State of Illinois may utilize non-licensed third-party companies representing the manufacturer and promoting the new products. These representatives may not carry on any activities which are enumerated in Sec. 5/5-1(a-1) unless the third-party company shall be registered as agents of the manufacturer under 5/5-1(a-1).

The manufacturer and its third-party agent may run the risk of “exposing” the product for sale, which practice was specifically addressed in the Fourth District Appellate Court case of People v. Select Specialties, Docket No. 4-99-0 (12/6/2000), which found that such “exposure” amounted to “selling,” stating:

“Although defendants did not ship the product or cash the consumer's check, they conducted a ‘sale’ within the meaning of the Act. Both the intent behind the Act (see Hassiepen v. Marcin, 24 Ill. App. 3d 97, 100, 320 N.E.2d 572, 575 (1974)) and common sense dictate the finding of a sale under the Act. Although defendants later added the terms ‘all wines are delivered by Shermer Specialties, which will appear on all credit card receipts and statements’ in small print at the bottom of the form, this does not change the result: defendants are selling alcohol without a license. The language of the statute is sufficiently comprehensive to include any person, natural or artificial, and any kind of a sale or device used in lieu of a direct sale. People ex rel. Stevenson v. Law & Order Club, 203 Ill. 127, 131, 67 N.E. 855, 857 (1903).

However, recognizing the parties’ right of commercial free speech and the importance of product promotion, and assuming all of the above concerns are groundless, there is nothing to prevent the third-party companies from displaying product photographs at licensed retailer business premises.

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