August 24, 2023 – Illinois recently enacted HB0218, the Firearm Industry Responsibility Act (“FIRA” or “Act”).  FIRA provides a statutory nuisance claim designed to serve as an exception to the immunity provided by the Protection of Lawful Commerce in Arms Act (“PLCAA”). The Act also criminalizes First Amendment-protected commercial free speech by prohibiting “firearm-related product” advertisements based on vague definitions of “intent to appeal to minors.”

According to FIRA, it is an unlawful practice for a “firearm industry member,” through the sale, manufacturing, importing, or marketing of a firearm-related product, to: (1) “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, including failing to establish or utilize reasonable controls”; (2) “advertise, market, or promote a firearm-related product in a manner that reasonably appears to support, recommend, or encourage individuals to engage in unlawful paramilitary or private militia activity in Illinois”; or (3) “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 purchase or possess or use a firearm-related product in Illinois.”

The Act defines “reasonable controls” as procedures, safeguards, and business practices that are designed to prevent the sale or distribution of a firearm-related product to a straw purchaser, as well as prevent the loss or theft of a firearm-related product from the firearm industry member. The Act essentially punishes lawful firearm manufacturers and retailers for crimes committed by remote third parties and would allow lawsuits against firearm retailers for being the victims of burglaries and robberies. FIRA shifts the blame of responsibility for an illegal straw purchase or burglary from the criminal committing the crime, to firearm manufacturers and retailers.

The National Shooting Sports Foundation (“NSSF”) filed a lawsuit challenging the constitutionality of the Act in the US District Court for the Southern District of Illinois. According to the lawsuit, the Act is an unconstitutional violation of the First and Second Amendments, is an unconstitutional extraterritorial regulation, and is preempted by federal law. NSSF asked the court for a declaration that the Act is preempted and unconstitutional, an injunction preventing Illinois from enforcing it against NSSF and/or its members, and nominal damages.

While that challenge is pending, industry members should closely review their sales and distribution practices, as well as their marketing and promotional materials, to minimize, to the extent possible, any claims that they violated the Act and resulting litigation.

Renzulli Law Firm, LLP will continue to monitor this case and other firearm related statutes and litigation around the country. If you have any questions concerning firearms related litigation, please contact John F. Renzulli or Christopher Renzulli.