Maine Passes Sweeping Law Governing Marketing to Minors
Law could threaten all marketing to Maine residents under the age of 18.
The
State of Maine recently enacted the “Act to Prevent Predatory
Marketing Practices Against Minors” (the “Act”) to restrict
collection of personal information from and marketing to minors.
This statute becomes effective on September 12, 2009, and could
threaten any type of promotion to minors in Maine, including sweepstakes
and contests.
The
statute was initially intended to address the collection of
health-related information of minors over the Internet and other
wireless devices. The
initial bill was revised during the legislative process to encompass not
only health-related information of minors, but any personal information
as well.
Prohibited
Acts
Under
the Act, it is unlawful to:
(1) knowingly collect or receive health-related information
or personal information for marketing purposes from a minor without
first obtaining verifiable parental consent;
(2) sell, offer for sale, or otherwise transfer to another
person health-related information or personal information about a minor
if that information was unlawfully collected pursuant to (1),
individually identifies the minor, or will be used for “predatory
marketing;” or
(3) use any health-related or personal information
regarding a minor for the purpose of marketing a product or service to
that minor or promoting any course of action for the minor relating to a
product (what Maine has defined as “predatory marketing”).
The
prohibition against “predatory marketing” applies whether or not the
marketer has obtained verifiable consent from a parent or guardian.
Even if a marketer receives consent under the Act, it appears
that the marketer still cannot use health-related or personal
information to market to minors in Maine.
Key
Definitions
The
Act defines “health-related information” 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 or
other similar data.”
“Personal
information” is defined as “individually identifiable information,
including: A. an individual’s first name, or first initial, and last
name; B. a home or physical address; C. a social security number; D. a
driver’s license or state identification card number; and E.
information concerning a minor that is collected in combination with an
identifier described in this subsection.”
The
Act defines “marketing purposes” broadly: “with respect to the use
of health-related information or personal information, [it] means the
purposes of marketing or advertising products, goods or services to
individuals.”
Enforcement
and Potential Remedies
The
Act provides three potential remedies for violations of this statute.
First, the statute provides that a violation is an unfair trade
practice, which can be enforced by both the Maine Attorney General and
as a private right of action.
Second,
the Act provides a private right of action for a person about whom
information is unlawfully collected or who is the object of predatory
marketing, for which such relief may include an injunction and monetary
damages, plus the potential for attorneys’ fees and treble damages.
Finally,
each violation of the statute constitutes a civil violation for which
substantial monetary fines can be levied.
Consequences
While
similar in structure, the Act goes well beyond the Children’s Online Privacy Protection Act (“COPPA”) to cover
more than just children under the age of 13 and more than just the
online collection of information. In
fact, the legislative history of the Maine statute shows that Maine’s
legislators intended to fill any void that COPPA left open – namely,
the collection and use of information of 13 to 18 year olds.
Marketers intending to collect information from minors, or market
to minors, will now have to comply not only with COPPA but Maine’s
statute as well.
Unless the Maine legislature revises the Act before September 12, it appears that marketers will not be able to collect or receive personal information from a minor after that date without first obtaining verifiable parental consent, and even if such consent was obtained, marketers will not be able to use such information to market to minors. Marketers will also have to consider what to do with ongoing promotions that continue past September 12 and whether the scrubbing of current marketing databases to remove minor residents of Maine will be necessary.
Questions? If you have any questions about this new law, or other
advertising law issues, please contact Christopher R. Chase
at (212) 826-5568 or cchase@fkks.com,
or any other member of the Frankfurt
Kurnit advertising group.
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