IN
Indiana House Bill HB1279

Indiana 2023 Regular Session

Indiana House Bill HB1279 Compare Versions

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1+*EH1279.2*
2+Reprinted
3+March 31, 2023
4+ENGROSSED
5+HOUSE BILL No. 1279
6+_____
7+DIGEST OF HB 1279 (Updated March 30, 2023 2:57 pm - DI 119)
8+Citations Affected: IC 24-4.
9+Synopsis: Third party food delivery services. Establishes in the
10+Indiana Code article concerning regulated businesses a new chapter
11+governing third party food delivery services. Defines: (1) "covered
12+establishment" as a: (A) restaurant; or (B) food service establishment;
13+that offers, whether directly or through a third party food delivery
14+service, the sale and same-day delivery or pick up of food and
15+beverages to customers; and (2) "third party food delivery service" as
16+a person that: (A) uses an online modality or platform to offer or
17+arrange for the sale, and same-day delivery or pick up, of food and
18+beverages prepared or provided by one or more covered
19+establishments; and (B) provides these services either for consideration
20+or for the purpose of obtaining customer data. Prohibits a third party
21+food delivery service from providing any services related to facilitating,
22+processing, or delivering an online order for a covered establishment
23+unless the covered establishment expressly agrees to allow the third
24+(Continued next page)
25+Effective: July 1, 2023.
26+Greene, Olthoff, Morris, Lehman
27+(SENATE SPONSORS — PERFECT, WALKER K, KOCH, DORIOT, YODER,
28+DONATO)
29+January 11, 2023, read first time and referred to Committee on Commerce, Small Business
30+and Economic Development.
31+February 21, 2023, amended, reported — Do Pass.
32+February 23, 2023, read second time, amended, ordered engrossed.
33+February 24, 2023, engrossed.
34+February 27, 2023, read third time, passed. Yeas 94, nays 0.
35+SENATE ACTION
36+March 6, 2023, read first time and referred to Committee on Commerce and Technology.
37+March 20, 2023, amended, reported favorably — Do Pass.
38+March 30, 2023, read second time, amended, ordered engrossed.
39+EH 1279—LS 7147/DI 101 Digest Continued
40+party food delivery service to provide those services. Provides that if
41+a covered establishment cancels its contract with a third party food
42+delivery service, the third party food delivery service shall, not later
43+than the time specified in the contract or, if a time for compliance is not
44+specified in the contract, not later than 72 hours after the covered
45+establishment provides notice of cancellation: (1) comply with any
46+terms and conditions for cancellation specified in the contract; and (2)
47+unless otherwise specified in the contract: (A) remove all menus
48+associated with the covered establishment from all online modalities or
49+platforms of the third party food delivery service; and (B) cease to
50+offer, arrange, or perform any activities related to the sale, and
51+same-day delivery or pickup, of food and beverages prepared or
52+provided by the covered establishment. Provides that if a third party
53+food delivery service violates the bill's provisions with respect to a
54+covered establishment, the covered establishment may bring an action
55+against the third party food delivery service, in which: (1) the court
56+may grant a temporary injunction enjoining the third party food
57+delivery service from providing food delivery services with relation to
58+the covered establishment during the pendency of the action; and (2)
59+a covered establishment that prevails is entitled to: (A) actual damages;
60+(B) temporary or permanent injunctive relief; (C) liquidated damages
61+of not more than $50,000 per transaction; and (D) court costs and
62+attorney's fees.
63+EH 1279—LS 7147/DI 101EH 1279—LS 7147/DI 101 Reprinted
64+March 31, 2023
165 First Regular Session of the 123rd General Assembly (2023)
266 PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
367 Constitution) is being amended, the text of the existing provision will appear in this style type,
468 additions will appear in this style type, and deletions will appear in this style type.
569 Additions: Whenever a new statutory provision is being enacted (or a new constitutional
670 provision adopted), the text of the new provision will appear in this style type. Also, the
771 word NEW will appear in that style type in the introductory clause of each SECTION that adds
872 a new provision to the Indiana Code or the Indiana Constitution.
973 Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts
1074 between statutes enacted by the 2022 Regular Session of the General Assembly.
11-HOUSE ENROLLED ACT No. 1279
12-AN ACT to amend the Indiana Code concerning trade regulation.
75+ENGROSSED
76+HOUSE BILL No. 1279
77+A BILL FOR AN ACT to amend the Indiana Code concerning trade
78+regulation.
1379 Be it enacted by the General Assembly of the State of Indiana:
14-SECTION 1. IC 24-4-23.2 IS ADDED TO THE INDIANA CODE
80+1 SECTION 1. IC 24-4-23.2 IS ADDED TO THE INDIANA CODE
81+2 AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE
82+3 JULY 1, 2023]:
83+4 Chapter 23.2. Third Party Food Delivery Services
84+5 Sec. 1. As used in this chapter, "affiliate" means any person who
85+6 directly or indirectly controls, is controlled by, or is under common
86+7 control of another person.
87+8 Sec. 2. (a) As used in this chapter, "covered establishment"
88+9 means a:
89+10 (1) restaurant; or
90+11 (2) food service establishment;
91+12 that offers, in a single transaction, whether directly or through a
92+13 third party food delivery service, the sale and same-day delivery or
93+14 pick up of food and beverages to customers.
94+15 (b) The term does not include a grocery store.
95+EH 1279—LS 7147/DI 101 2
96+1 Sec. 3. As used in this chapter, "online order" means an order
97+2 that is:
98+3 (1) placed by a customer of a covered establishment;
99+4 (2) for food and beverages prepared or provided by the
100+5 covered establishment;
101+6 (3) for same-day delivery or pick up in Indiana; and
102+7 (4) made through an online modality or platform provided by
103+8 a third party food delivery service, including:
104+9 (A) a website;
105+10 (B) a mobile application; or
106+11 (C) another Internet service.
107+12 Sec. 4. As used in this chapter, "person" means an individual, a
108+13 corporation, a partnership, an association, or another legal entity.
109+14 Sec. 5. (a) As used in this chapter, "third party food delivery
110+15 service" means a person that:
111+16 (1) uses an online modality or platform, such as:
112+17 (A) a website;
113+18 (B) a mobile application; or
114+19 (C) another Internet service;
115+20 to offer or arrange for the sale, and same-day delivery or pick
116+21 up, of food and beverages prepared or provided by one (1) or
117+22 more covered establishments that are not affiliates of the
118+23 person; and
119+24 (2) engages in the activities described in subdivision (1):
120+25 (A) for consideration; or
121+26 (B) for the purpose of obtaining customer data related to
122+27 a transaction between a covered establishment and a
123+28 customer of the covered establishment.
124+29 (b) The term does not include an:
125+30 (1) Internet service provider; or
126+31 (2) Internet search engine;
127+32 used by a third party food delivery service, a covered
128+33 establishment, or a customer of a covered establishment if the
129+34 Internet service provider or Internet search engine does not both
130+35 receive consideration for and offer and arrange for the sale, and
131+36 same-day delivery or pick up, of food and beverages prepared or
132+37 provided by one (1) or more covered establishments that are not
133+38 affiliates of the Internet service provider or the Internet search
134+39 engine, as described in subsection (a)(1) and (a)(2).
135+40 Sec. 6. (a) A third party food delivery service may not provide
136+41 any services related to facilitating, processing, or delivering an
137+42 online order for a covered establishment unless the covered
138+EH 1279—LS 7147/DI 101 3
139+1 establishment expressly agrees in a signed writing, or through an
140+2 electronic agreement signed and dated with an electronic signature
141+3 (as defined in IC 26-2-8-102), to allow the third party food delivery
142+4 service to provide those services.
143+5 (b) If a covered establishment provides notice to a third party
144+6 food delivery service of the covered establishment's cancellation of
145+7 the covered establishment's service contract with the third party
146+8 food delivery service, the third party food delivery service shall
147+9 comply with any terms and conditions for cancellation specified in
148+10 the contract, not later than:
149+11 (1) the time specified in the contract, if such a time is specified
150+12 in the contract; or
151+13 (2) if a time is not specified in the contract, seventy-two (72)
152+14 hours after the covered establishment's provision of the notice
153+15 of cancellation.
154+16 Unless otherwise specified in the service contract, not later than the
155+17 time specified in subdivision (1) or (2), as applicable, the third
156+18 party food delivery service shall remove all menus associated with
157+19 the covered establishment, whether the menus were provided to the
158+20 third party food delivery service by the covered establishment or
159+21 otherwise, from all online modalities or platforms of the third
160+22 party food delivery service and shall cease to offer, arrange, or
161+23 perform any activities related to the sale, and same-day delivery or
162+24 pickup, of food and beverages prepared or provided by the covered
163+25 establishment.
164+26 Sec. 7. (a) If a third party food delivery service:
165+27 (1) provides services related to facilitating, processing, or
166+28 delivering an online order for a covered establishment
167+29 without the covered establishment's express agreement to
168+30 allow the third party food delivery service to provide those
169+31 services, in violation of section 6(a) of this chapter; or
170+32 (2) fails to terminate a service contract with a covered
171+33 establishment as provided in section 6(b) of this chapter;
172+34 the covered establishment may bring an action for the alleged
173+35 violation in a court with jurisdiction.
174+36 (b) A court in an action brought by a covered establishment
175+37 against a third party food delivery service under subsection (a)
176+38 may grant a temporary injunction enjoining the third party food
177+39 delivery service, during the pendency of the action, from providing
178+40 services related to facilitating, processing, or delivering online
179+41 orders for food or beverages prepared or provided by the covered
180+42 establishment.
181+EH 1279—LS 7147/DI 101 4
182+1 (c) A covered establishment that prevails in an action brought
183+2 under subsection (a) is entitled to:
184+3 (1) actual damages;
185+4 (2) temporary or permanent injunctive relief;
186+5 (3) liquidated damages of not more than fifty thousand dollars
187+6 ($50,000); and
188+7 (4) reasonable costs and attorney's fees;
189+8 for each transaction the third party food delivery service made
190+9 with a customer for food and beverages prepared or provided by
191+10 the covered establishment in violation of section 6(a) of this
192+11 chapter.
193+12 Sec. 8. The remedies set forth in this chapter are:
194+13 (1) cumulative;
195+14 (2) nonexclusive; and
196+15 (3) in addition to any other legal or equitable remedy
197+16 available to a person aggrieved by a violation of this chapter.
198+EH 1279—LS 7147/DI 101 5
199+COMMITTEE REPORT
200+Mr. Speaker: Your Committee on Commerce, Small Business and
201+Economic Development, to which was referred House Bill 1279, has
202+had the same under consideration and begs leave to report the same
203+back to the House with the recommendation that said bill be amended
204+as follows:
205+Delete AM127902 as adopted by the House Commerce, Small
206+Business, and Economic Development Committee on February 15,
207+2023.
208+Page 1, delete lines 1 through 15, begin a new paragraph and insert:
209+"SECTION 1. IC 24-4-23.2 IS ADDED TO THE INDIANA CODE
15210 AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE
16211 JULY 1, 2023]:
17212 Chapter 23.2. Third Party Food Delivery Services
18213 Sec. 1. As used in this chapter, "affiliate" means any person who
19214 directly or indirectly controls, is controlled by, or is under common
20215 control of another person.
21216 Sec. 2. (a) As used in this chapter, "covered establishment"
22217 means a:
23218 (1) restaurant; or
24219 (2) food service establishment;
25-that offers, in a single transaction, whether directly or through a
26-third party food delivery service, the sale and same-day delivery or
27-pick up of food and beverages to customers.
220+that offers, in a single transaction over the Internet, whether
221+directly or through a third party food delivery service, the sale and
222+same-day delivery or pick up of food and beverages to customers.
28223 (b) The term does not include a grocery store.
29224 Sec. 3. As used in this chapter, "online order" means an order
30225 that is:
31226 (1) placed by a customer of a covered establishment;
32227 (2) for food and beverages prepared or provided by the
33228 covered establishment;
34229 (3) for same-day delivery or pick up in Indiana; and
35-HEA 1279 — Concur 2
36230 (4) made through an online modality or platform provided by
37231 a third party food delivery service, including:
38232 (A) a website;
39233 (B) a mobile application; or
40234 (C) another Internet service.
41235 Sec. 4. As used in this chapter, "person" means an individual, a
42236 corporation, a partnership, an association, or another legal entity.
43-Sec. 5. (a) As used in this chapter, "third party food delivery
44-service" means a person that:
237+Sec. 5. As used in this chapter, "third party food delivery
238+service" means a person that uses an online modality or platform,
239+such as:
240+(1) a website;
241+EH 1279—LS 7147/DI 101 6
242+(2) a mobile application; or
243+(3) another Internet service;
244+to offer or arrange for the sale, and same-day delivery or pick up,
245+of food and beverages prepared or provided by one (1) or more
246+covered establishments that are not affiliates of the person.
247+Sec. 6. (a) A third party food delivery service may not provide
248+any services related to facilitating, processing, or delivering an
249+online order for a covered establishment unless the covered
250+establishment expressly agrees in a signed writing, or through an
251+electronic agreement signed and dated with an electronic signature
252+(as defined in IC 26-2-8-102), to allow the third party food delivery
253+service to provide those services.
254+(b) A third party food delivery service shall terminate a service
255+contract with a covered establishment not later than seventy-two
256+(72) hours after the covered establishment provides oral, written,
257+or electronic notice of the covered establishment's decision to
258+terminate the contract to the individual contact person designated
259+in:
260+(1) the service contract; or
261+(2) the third party food delivery service's online modality or
262+platform used by the covered establishment;
263+for communications regarding the termination or amendment of
264+the service contract.
265+Sec. 7. (a) If a third party food delivery service:
266+(1) provides services related to facilitating, processing, or
267+delivering an online order for a covered establishment
268+without the covered establishment's express agreement to
269+allow the third party food delivery service to provide those
270+services, in violation of section 6(a) of this chapter; or
271+(2) fails to terminate a service contract with a covered
272+establishment not later than seventy-two (72) hours after the
273+covered establishment provides oral, written, or electronic
274+notice of the covered establishment's decision to terminate the
275+contract, in violation of section 6(b) of this chapter;
276+the covered establishment may bring an action for the alleged
277+violation in a court with jurisdiction.
278+(b) A covered establishment that prevails in an action brought
279+under subsection (a) is entitled to damages of not more than fifty
280+thousand dollars ($50,000) for each violation, as determined by the
281+court, plus reasonable costs and attorney's fees.".
282+Delete pages 2 through 15.
283+Page 16, delete lines 1 through 19.
284+EH 1279—LS 7147/DI 101 7
285+Page 16, line 20, delete "16." and insert "8.".
286+Renumber all SECTIONS consecutively.
287+and when so amended that said bill do pass.
288+(Reference is to HB 1279 as introduced and as amended by
289+AM127902.)
290+MORRIS
291+Committee Vote: yeas 9, nays 0.
292+_____
293+HOUSE MOTION
294+Mr. Speaker: I move that House Bill 1279 be amended to read as
295+follows:
296+Page 3, delete lines 12 through 15, begin a new paragraph and
297+insert:
298+"(b) A covered establishment that prevails in an action brought
299+under subsection (a) is entitled to:
300+(1) liquidated damages of not more than fifty thousand dollars
301+($50,000); and
302+(2) reasonable costs and attorney's fees;
303+for each transaction the third party food delivery service made
304+with a customer for food and beverages prepared or provided by
305+the covered establishment in violation of section 6(a) of this
306+chapter.".
307+(Reference is to HB 1279 as printed February 21, 2023.)
308+LEHMAN
309+_____
310+COMMITTEE REPORT
311+Madam President: The Senate Committee on Commerce and
312+Technology, to which was referred House Bill No. 1279, has had the
313+same under consideration and begs leave to report the same back to the
314+Senate with the recommendation that said bill be AMENDED as
315+follows:
316+Page 1, line 12, delete "transaction over the Internet," and insert
317+"transaction,".
318+Page 2, line 14, after "5." insert "(a)".
319+EH 1279—LS 7147/DI 101 8
320+Page 2, line 15, delete "that uses an online modality or platform,"
321+and insert "that:
45322 (1) uses an online modality or platform, such as:
46323 (A) a website;
47324 (B) a mobile application; or
48325 (C) another Internet service;
49326 to offer or arrange for the sale, and same-day delivery or pick
50327 up, of food and beverages prepared or provided by one (1) or
51328 more covered establishments that are not affiliates of the
52329 person; and
53330 (2) engages in the activities described in subdivision (1):
54331 (A) for consideration; or
55332 (B) for the purpose of obtaining customer data related to
56333 a transaction between a covered establishment and a
57334 customer of the covered establishment.
58335 (b) The term does not include an:
59336 (1) Internet service provider; or
60337 (2) Internet search engine;
61338 used by a third party food delivery service, a covered
62339 establishment, or a customer of a covered establishment if the
63-Internet service provider or Internet search engine does not both
64-receive consideration for and offer and arrange for the sale, and
65-same-day delivery or pick up, of food and beverages prepared or
66-provided by one (1) or more covered establishments that are not
67-affiliates of the Internet service provider or the Internet search
68-engine, as described in subsection (a)(1) and (a)(2).
69-Sec. 6. (a) A third party food delivery service may not provide
70-any services related to facilitating, processing, or delivering an
71-online order for a covered establishment unless the covered
72-establishment expressly agrees in a signed writing, or through an
73-electronic agreement signed and dated with an electronic signature
74-(as defined in IC 26-2-8-102), to allow the third party food delivery
75-service to provide those services.
76-(b) If a covered establishment provides notice to a third party
340+Internet service provider or Internet search engine does not engage
341+in the activities described in subsection (a).".
342+Page 2, delete lines 16 through 22.
343+Page 3, between lines 11 and 12, begin a new paragraph and insert:
344+"(b) A court in an action brought by a covered establishment
345+against a third party food delivery service under subsection (a)
346+may grant a temporary injunction enjoining the third party food
347+delivery service, during the pendency of the action, from providing
348+services related to facilitating, processing, or delivering online
349+orders for food or beverages prepared or provided by the covered
350+establishment.".
351+Page 3, line 12, delete "(b)" and insert "(c)".
352+Page 3, between lines 13 and 14, begin a new line block indented
353+and insert:
354+"(1) actual damages;
355+(2) temporary or permanent injunctive relief;".
356+Page 3, line 14, delete "(1)" and insert "(3)".
357+Page 3, line 16, delete "(2)" and insert "(4)".
358+and when so amended that said bill do pass.
359+(Reference is to HB 1279 as reprinted February 24, 2023.)
360+EH 1279—LS 7147/DI 101 9
361+PERFECT, Chairperson
362+Committee Vote: Yeas 10, Nays 1.
363+_____
364+SENATE MOTION
365+Madam President: I move that Engrossed House Bill 1279 be
366+amended to read as follows:
367+Page 2, line 34, delete "engage" and insert "both receive
368+consideration for and offer and arrange for the sale, and same-day
369+delivery or pick up, of food and beverages prepared or provided by
370+one (1) or more covered establishments that are not affiliates of the
371+Internet service provider or the Internet search engine, as
372+described in subsection (a)(1) and (a)(2).".
373+Page 2, delete line 35.
374+(Reference is to EHB 1279 as printed March 21, 2023.)
375+PERFECT
376+_____
377+SENATE MOTION
378+Madam President: I move that Engrossed House Bill 1279 be
379+amended to read as follows:
380+Page 3, delete lines 1 through 11, begin a new paragraph and insert:
381+"(b) If a covered establishment provides notice to a third party
77382 food delivery service of the covered establishment's cancellation of
78-HEA 1279 — Concur 3
79383 the covered establishment's service contract with the third party
80384 food delivery service, the third party food delivery service shall
81385 comply with any terms and conditions for cancellation specified in
82386 the contract, not later than:
83387 (1) the time specified in the contract, if such a time is specified
84388 in the contract; or
85389 (2) if a time is not specified in the contract, seventy-two (72)
86390 hours after the covered establishment's provision of the notice
87391 of cancellation.
88392 Unless otherwise specified in the service contract, not later than the
89393 time specified in subdivision (1) or (2), as applicable, the third
90394 party food delivery service shall remove all menus associated with
91395 the covered establishment, whether the menus were provided to the
92396 third party food delivery service by the covered establishment or
397+EH 1279—LS 7147/DI 101 10
93398 otherwise, from all online modalities or platforms of the third
94399 party food delivery service and shall cease to offer, arrange, or
95400 perform any activities related to the sale, and same-day delivery or
96401 pickup, of food and beverages prepared or provided by the covered
97-establishment.
98-Sec. 7. (a) If a third party food delivery service:
99-(1) provides services related to facilitating, processing, or
100-delivering an online order for a covered establishment
101-without the covered establishment's express agreement to
102-allow the third party food delivery service to provide those
103-services, in violation of section 6(a) of this chapter; or
104-(2) fails to terminate a service contract with a covered
105-establishment as provided in section 6(b) of this chapter;
106-the covered establishment may bring an action for the alleged
107-violation in a court with jurisdiction.
108-(b) A court in an action brought by a covered establishment
109-against a third party food delivery service under subsection (a)
110-may grant a temporary injunction enjoining the third party food
111-delivery service, during the pendency of the action, from providing
112-services related to facilitating, processing, or delivering online
113-orders for food or beverages prepared or provided by the covered
114-establishment.
115-(c) A covered establishment that prevails in an action brought
116-under subsection (a) is entitled to:
117-(1) actual damages;
118-(2) temporary or permanent injunctive relief;
119-(3) liquidated damages of not more than fifty thousand dollars
120-($50,000); and
121-HEA 1279 — Concur 4
122-(4) reasonable costs and attorney's fees;
123-for each transaction the third party food delivery service made
124-with a customer for food and beverages prepared or provided by
125-the covered establishment in violation of section 6(a) of this
126-chapter.
127-Sec. 8. The remedies set forth in this chapter are:
128-(1) cumulative;
129-(2) nonexclusive; and
130-(3) in addition to any other legal or equitable remedy
131-available to a person aggrieved by a violation of this chapter.
132-HEA 1279 — Concur Speaker of the House of Representatives
133-President of the Senate
134-President Pro Tempore
135-Governor of the State of Indiana
136-Date: Time:
137-HEA 1279 — Concur
402+establishment.".
403+ Page 3, line 19, delete "not later than seventy-two (72) hours after
404+the" and insert "as provided in section 6(b) of this chapter;".
405+Page 3, delete lines 20 through 22.
406+(Reference is to EHB 1279 as printed March 21, 2023.)
407+DEERY
408+EH 1279—LS 7147/DI 101