Updated Covid-19-Related Marketing Guidelines – June 4, 2020

On March 20, 2020, in light of the growing COVID-19 pandemic and its expected impacts in Illinois, the Illinois Power Agency adopted the following emergency amendment to its Adjustable Block Program and Illinois Solar for All Program Marketing Guidelines:

In-person marketing and solicitation: Given the public health emergency posed by the COVID-19 virus, in-person marketing or solicitation of photovoltaic system sales, installations, or financing; in-person marketing or solicitation of community solar subscriptions; or similar in-person solar marketing or solicitation activity are prohibited. 

Clarifications to these requirements were offered on May 18, 2020, along with a statement that further guidance would be offered during the first week of June.  This communication offers that guidance.

While all four regions of the state successfully achieved Phase 3 (out of 5) of the State of Illinois’s Restore Illinois Reopening Plan on May 29th—thus demonstrating that COVID-19 infection rates, hospitalizations, and ICU capacity remain stable or are decreasing—the IPA does not believe that a full elimination of its in-person marketing and solicitation prohibition is warranted.

As outlined most recently in Governor J.B. Pritzker’s May 29, 2020 disaster proclamation, COVID-19 remains a significant public health threat to Illinois residents.  By way of example, the two days prior to this June 4, 2020 announcement featured official totals of over 200 new COVID-19-related fatalities and over 2500 new positive cases in Illinois.  While hospitalization rates, fatalities, and positive testing rates have recently been declining from peak levels, they remain at levels significant enough to continue to constitute a public health emergency across Illinois.

Although Phase 3 of the Restore Illinois Plan permits gatherings of 10 people or fewer, those gatherings presumably involve individuals acquiescing to person-to-person interactions.  This is not the case for door-to-door sales and solicitation.  An at-risk individual may believe that a visitor to his or her residence is delivering groceries, pharmaceutical drugs, or other true necessities rather than soliciting a product that the individual does not need.  To prevent these and other unwanted interactions during an ongoing pandemic, and to ensure that Illinois residents and business have positive experiences under a ratepayer-funded incentive program, the IPA believes that while certain aspects of its restrictions should be loosened, door-to-door sales and solicitation will remain prohibited. (The Agency notes that the Illinois Commerce Commission’s emergency order prohibiting door to door sales by Alternative Retail Electric Suppliers and Alternative Gas Suppliers also remains in place.)

The Illinois Power Agency will revisit this decision in approximately two to three weeks’ time.  Absent any new announcements from the Agency, this prohibition will remain in place.

PERMITTED ACTIVITIES

In light of the progress that has been made to date, one prior clarification has been revisited.  Passive forms of in-person marketing and solicitation – such as tabling at retail stores or events, or door-to-door distribution of marketing materials such as advertising flyers – are no longer prohibited.  While these activities could increase the likelihood of unnecessary person-to-person interactions, such an increase would be small or already agreed-to through participation in existing commercial channels.  Any permitted door-to-door distribution of marketing materials must consist only of distribution of materials (with no notification—such as door knocking or ringing of a doorbell—allowed) and not include any other marketing or solicitation activities, including in-person sales or solicitation, until such time as the potential customer has received and read those materials and initiated an entirely separate follow-up conversation.

Additionally, in-person meetings with prospective or existing customers (such as a follow-up to an online or phone discussion) are not prohibited so long as expressly agreed to by that customer.  The IPA strongly discourages any high-pressure tactics used to secure such meetings, however, and requests that all Approved Vendors, designees, agents, and subcontractors strongly consider whether virtual meetings, e-signatures, or other telecommunication practices can instead be utilized.  Approved Vendors, designees, agents, and subcontractors must respect the wishes of existing or prospective customers who do not wish to meet in-person.

The IPA and its Program Administrators are taking steps to cross-check project applications and disclosure forms received during this in-person sales and marketing prohibition through follow-up with select customers.  These checks are being made to ensure that prohibited sales and solicitation practices are not in fact being utilized.

Should you have questions about whether specific other sales practices are permitted, please contact IPA Chief Legal Counsel Brian Granahan at Brian.Granahan@Illinois.gov.  To the extent not expressly addressed above or otherwise clear, whether a sales practice is permitted under the IPA’s emergency COVID-19-related marketing guidelines will generally depend on whether a) the sales activity could result in person-to-person interactions without the consent of the prospective customer and b) whether a viable alternative avoiding person-to-person interaction can be identified.

BEST PRACTICES

In conducting permitted sales and solicitation activity, the IPA strongly encourages that certain best practices be adopted.

  • First, as noted above, person-to-person interactions should be minimized. If business can instead be conducted through phone, email, Zoom chats, utilizing e-signatures, or otherwise using mediums non-reliant on person-to-person interactions, public health interests as served by utilizing those measures.
  • Second, even under Phase 3 of the Governor J.B. Pritzker’s Restore Illinois Plan, certain best practices continue to be required. For example, utilizing face coverings in public still stands as a requirement under Phase 3 just as it was under Phase 2.  And while certain industries can begin returning to workplaces, social distancing and proper sanitization practices are required to be put in place.  The IPA believes these practices should likewise be required for any solar sales and solicitation practices involving any in-person interactions, and strongly encourages Approved Vendors to ensure that any sales agents or other individuals interfacing with customers are specifically trained in how to minimize the risk of spreading COVID-19.
  • Third, even if certain practices are not prohibited under the requirements issued by the IPA, Approved Vendors, designees, subcontractors, and agents should understand and operate mindful of any local requirements (some of which may be stricter than IPA requirements).

OFFICE REOPENINGS

Nothing in the IPA’s in-person marketing and solicitation prohibition is intended to address whether corporate, satellite, or other offices of an Approved Vendor, designee, subcontractor, or agent may reopen.  The IPA understands those decisions to be governed by the Governor’s five-phase Restore Illinois Plan and, once permitted by state and local authorities, subject to the determinations of that company’s leadership.