Maine Committee Does the Right Thing, Recommends Repeal of Marketing Law

by on October 20, 2009 · 7 comments

maine capitol bildgSometimes legislators vote along political party interests, sometimes in their self interest, and as we saw in Maine–sometimes legislators will have the constitutional interests of free speech and the commerce clause in mind.

I traveled with my NetChoice colleague Steve DelBianco to Augusta last week to testify at a joint judiciary committee hearing of the Maine legislature. Our mission: persuade the committee members to repeal the Predatory Marketing Act, which became law just two months ago–and a law so bad that it ranked #1 on NetChoice’s iAWFUL top ten list of worst legislation.

This law’s potentially sweeping (negative) impact is a big deal. So big that the Maine legislature met out-of-session to re-consider it. It dedicated a webpage to the hearing and received over 30 comments from various interests — including comments from NetChoice.

The law seriously restricts the exchange of information between Web 2.0 services and their users by making it unlawful to knowingly collect or receive health-related or personal information for marketing purposes from a minor, without first obtaining verifiable parental consent. In effect, the law restricts advertising that is most relevant to user interests.

We arrived confident but with a “tail between our legs” feeling — after all, we had just sued the state of Maine and agreed to a court order that said very favorable words about our chances to win on the merits. In the court case, NetChoice was joined by Reed Elsevier, the Maine Independent Colleges Association, and the Maine Press Association in calling for an injunction against the law, arguing that it tramples First Amendment rights while wreaking havoc with interstate commerce.

So here we were, with but a day or two to show how the existing law broadly harms a number of online services. We urged the Committee that any law should focus on actual harm to minors, without prohibiting the legitimate marketing and advertising that makes free content and Web 2.0 services possible. In addition to NetChoice, the committee heard from constitutional scholars, companies, and providers of health-related services.

The committee carefully considered all the testimony, but the right response was evident. Even the bill sponsors agreed that the law needed to be fixed (though there was disagreement as to how much). The committee unanimously recommended to repeal the existing law.

Although there still seems to be a lot of ambiguity about the original intent of the bill, the committee agreed that there are concerns with some marketing practices of healthcare products that are targeted to minors, and that the primary focus of the original bill  was the collection and transfer of personal information of minors for healthcare product marketing. Changes to the bill broadened the bill (it was already very broad) which made it obvious that the bill was unconstitutional and not fixable in present form.

The committee made the following recommendations:

  • Leadership should find the earliest available opportunity to allow removal of the entire existing statute
  • Should the bill be introduced, there may be ways to make it constitutional if it only applies to the personal information of children 12 and under, follows the requirements of COPPA, is narrowly tailored, and is based on full public hearings to create a sound public record and clear legislative intent.

So we’re on track to see the law repealed sometime in January. But we’ll also see the introduction of a new bill at that time, too. It is likely that enforcement of existing federal and state laws can address a great deal of the marketing tactics of concern to the bill sponsors. So we’ll need to be prepared to help guide legislators to do the right thing again next year if need be.

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