New Law on Marketing to Minors Passes Maine Legislature

August 31, 2009 — A bill, LD 1183, titled “An Act to Prevent Predatory Practices Against Minors,” becomes effective on September 12. The bill passed the Maine Legislature very late in the session, and was signed by the governor of Maine in early June.

The original version of the bill required parental permission before the collection and use of certain health-related information of minors. Unfortunately, the bill was amended at the last minute to include a new and expansive definition of personal information. This not only changed the tenor of the legislation, but according to many assessments, made it impractical, if not impossible to comply with, and unconstitutional in a variety of ways. The bill also contains a private right of action provision.

The original version of the bill required parental permission before the collection and use certain health-related information of a minor. However, the bill was amended at the last minute to include a new and expansive definition of personal information. This not only changed the tenor of the legislation, but according to many assessments, made it impractical, if not impossible, to comply with, and unconstitutional in a variety of ways. The bill also contains a private right of action provision.

The amended version of the bill, as enacted, prohibits the collection or receipt of “health-related information or personal information for marketing purposes from a minor without first obtaining verifiable parental consent of that minor’s parent or legal guardian” and using any health-related or personal information for marketing to a minor.

Personal information is defined as individually identifiable information, including:

· Individual’s first name, or first initial, and last name;

· Home or other physical address;

· Social security number;

· Driver’s license number or state identification card number; and

· Information concerning a minor that is collected in combination with an identifier described in this subsection.

Health-related is defined as: any information about an individual or a member of the individual’s family relating to:

· Health

· Nutrition

· Drug or medication use

· Physical or bodily condition

· Mental health,

· Medical history

· Medical insurance coverage or claims

· Other similar data

A lawsuit has been filed on behalf of the Maine Independent Colleges, the Maine Press Association, NetChoice, and Reed Elsevier seeking a preliminary injunction. There is currently no timetable for a decision from the court, but the suit notes that the plaintiffs could face “irreparable harm absent an injunction.”

DMA, along with a large coalition of other associations and companies, intends to seek a modification of this law as soon as is practicable. “The overly broad requirements and limitations of the amended version of the bill were not the intent of the legislature, which has adjourned and is not scheduled to reconvene until January,” said Ron Barnes, DMA’s vice president of state affairs.

There is a possibility that the legislature may return in the fall for a special session when a bill amending the law could be taken up, but that is not guaranteed.

Following the September 12 effective date, companies should be aware that there could be potential legal exposure because of the private right of action provision, and are advised to consider their options for compliance with the law in the event action on the preliminary injunction has not occurred.

Please contact Ron Barnes (rbarnes@the-dma.org or 202-861-2414) if you have questions or would like additional information.

The text of the bill can be found at this link: http://www.mainelegislature.org/legis/bills/bills_124th/chappdfs/PUBLIC230.pdf