Maine AG - I Will Not Enforce New Marketing Law

It looks as though Maine’s Attorney General will not enforce a controversial new state law that restricts marketing to minors, but has drawn a federal lawsuit because plaintiffs argued that the law swept too broadly. The Wall Street Journal today reports that a spokesperson for Maine AG Janet Mills said that Mills will not be enforcing the law and will work with sponsors to amend the legislation when Maine’s legislature reconvenes in January, 2010. One caution here, though -- the Maine law contains a private right of action which means that, although the AG has decided against enforcement, a private party could still bring an individual suit ---- or a class action. Stay tuned.

Do you market to 'tweens?? Better watch out for the new Maine law.....

Maine Governor John Baldacci has signed a sweeping new law called "An Act to Prevent Predatory Marketing Practices to Minors."  While that is a laudatory effort and responsible marketers would not want to be predatory, it is not difficult to see this law as overreaching.  It goes beyond restrictions in federal law under the Children's Online Privacy Protection Act, where the cutoff age is 13 and applies to "minors" -- not otherwise defined in the Maine law, but the age of majority in that state is 18.

 The law prohibits "marketers" -- which is anyone promoting a product or service - from knowingly collecting, receiving or using personal information of minors without obtaining verifiable parental consent. Additionally, even with verifiable parental consent, the law still prohibits the of personal information regarding a minor in the marketing of products or services or in promoting a course of action to a minor. 

This Act then seemingly cuts off "minors" from being marketed to about colleges and universities, testing services such as the SAT and ACT, test prep services, and financial aid services, along with any other kind of marketing. The law contains a private right of action with injunctive relief and recovery of actual damages for each violation, and allows for civil fines over $20,000 for repeat offenses. 

A link to the legislation is below. The law takes effect September 12, 2009. It is likely to be challenged, and interest groups are gearing up to try and force an amendment, because of its breadth and scope, but the law will be in effect come September and the Maine Legislature does not reconvene until January of 2010. Clear to see that this will create some major compliance issues....

Maine Act to Prevent Predatory Marketing Practices to Minors:  http://www.mainelegislature.org/legis/bills/bills_124th/chapters/PUBLIC230.asp