Maine - New Year, New Legislative Session, New Version of the Marketing to 'Tweens Law

As promised last year, the Maine legislative session opened this week with the introduction of a new predatory marketing bill--LD 1677. This bill would repeal the beleaguered LD 1883, which was signed to law last year, but faced major opposition from industry groups, leading Maine's attorney general to promise not to enforce the law. The new bill applies to online information only and is limited to pharmaceutical marketing. It gives the attorney general the power to adopt rules to determine its scope. Violation of the law would be considered an unfair trade practice.

New Maine Legislation

Privacy and Security Information - Privacy MATTERS: Lawsuit Filed to Block New Maine Marketing Law

Maine Lawsuit Dismissed and Law "Likely Unconstitutional"

The kerfuffle over the controversial Maine law slated to become effective this week that would have prohibited all marketing to minors has been dismissed. Yesterday, the District of Maine issued a Stipulated Order of Dismissal stating that there is a likelihood that the statute is "overbroad and violates the First Amendment." Further (and perhaps more important to business), Judge Woodcock warned that any individual lawsuits brought under the statute’s private right of action would likely face the same fate -- dismissal. "[T]hird parties are on notice that a private cause of action under Chapter 230 could suffer from the same constitutional infirmities" that resulted in his finding that the law was likely overbroad, Woodcock concluded.

In the meantime, the lawsuit was dismissed without prejudice in light of the Attorney General’s representation to the Court that Maine will not enforce the statute and that the Legislature will reconsider it when they reconvene in January 2010.

Other links:
eWeek
Portland Press Herald

Lawsuit Filed to Block New Maine Marketing Law

As expected, a lawsuit was filed yesterday in U.S. District Court for the District of Maine seeking to block enforcement of the controversial new Maine marketing law we discussed in this blog last month. The plaintiffs are the Maine Independent Colleges Association, Maine Press Association, NetChoice, and publisher Reed Elsevier, Inc. NetChoice is a coalition of trade associations and e-commerce businesses, including AOL/TimeWarner, Yahoo! and eBay. The law takes effect September 12, 2009.

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