Mark Pestronk
Q: I have read many of your columns over the years about state seller of travel laws, but I have never read one that mentions Illinois’ Travel Promotion Consumer Protection Act (TPCPA). Who is subject to the TPCPA, what does it provide and what are the penalties for violation?
A: The Illinois TPCPA, enacted in 2001, is unique in that although it does not require travel sellers to obtain a state registration, it does have some of the same consumer protections as the California, Florida, Hawaii and Washington state seller of travel laws.
Let me start by noting that the law does not apply to ARC-appointed agencies, but it does apply to anyone else who “sells, provides, furnishes, contracts for, arranges or advertises that he or she will arrange wholesale or retail transportation by air, land, sea or navigable stream, either separately or in conjunction with other services.”
Whether it applies to independent contractors of ARC agencies is unclear, as the law does not mention ICs. In my opinion, if an IC sells travel in the name of the ARC-appointed host, the IC would be exempt, but if the IC sells travel in their own name, the law would apply.
The law also applies to any other sellers without an ARC appointment, including tour operators, wholesalers or consolidators. However, there is an exemption if the company has a $1 million errors and omissions insurance policy plus a $100,000 surety bond.
The key mandates of the TPCPA are:
• You must provide a receipt that details the travel booked, including the cancellation terms and including “a statement, in eight-point boldface type, that upon cancellation of the transportation through no fault of the passenger, all sums paid to the travel promoter for services not performed in accordance with the contract between the travel promoter and the passenger will be, unless the passenger otherwise advises the travel promoter in writing, promptly refunded.”
As with the California law, the drafters seem not to have realized that retailers hardly ever hold the consumer’s money, so imposing a refund requirement on all retail sales is very unfair.
• You must “deposit 90% of all sums received, including but not limited to those made by cash, credit card or any other method of payment, for air or sea transportation or any other services or goods offered by the travel promoter in conjunction with that transportation, directly into a trust account in a federally insured bank or savings and loan association.” You cannot withdraw from the trust account, except to pay suppliers and make refunds, until the trip ends.
Like all consumer-protection laws, the TPCPA applies to out-of-state sellers who sell to Illinois residents, so this law should be of interest to travel sellers nationwide and even abroad.
Violations are subject to civil penalties of up to $60,000 per violation and criminal penalties, as well. Since there is no state registration, there is probably very little compliance oversight unless a consumer complains to the Illinois attorney general.
