The Maine Act: Preventing Predatory Marketing Practices Against Minors

Maine Seeks To Be The Tail Wagging The Dog

There have been prior efforts to regulate online marketing to children, such as the enactment by Congress of the Children’s Online Privacy Protection Behave (COPPA). But now along comes Maine, with its Behave To Prevent Predatory Marketing Practices Against Minors (the Maine Act), as the latest governmental crusader seeking to protect the rights of children against abusive marketing. Is this a positive development, with Maine seeking to be the governmental tail wagging the dog in this arena? Read on.

COPPA, which has been on the books for a decade, demands verifiable parental consent before Web sites may collect personal information from children under the age of 13 years old. The Maine Behave, which is scheduled to go into effect next month, goes farther in several respects.

• First, the Maine Act applies generally to minors, which likely refers to anyone under the age of Eighteen years old.

• Second, the Maine Behave not only regulates the potential collection of information online, but it also appears to govern other forms of information collection.

• Third, the Maine Behave applies generally to persons, whereas COPPA specifically targets Website operators. A person is broadly defined under the Maine Act as “an individual, firm, partnership, corporation, association, syndicate, organization, society, business, trust, attorney-in-fact and every natural or artificial legal entity.”

• Fourth, and significantly, the Maine Behave, different than COPPA, allows for significant fines and private causes of action with the potential for lawyer’s fees.

The Maine Act prohibits predatory marketing against minors as follows: “A person may not use any health-related information 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.” This appears to be a flat prohibition that cannot be cured even with parental consent.

As far as the unlawful collection and use of health-related data from minors, the Maine Behave provides: “It is unlawful for a person to knowingly collect or receive health-related information or personal information for marketing purposes from a minor without first obtaining verifiable parental consent from that minor’s parent or legal guardian.”

For purposes of the Maine Act, personal information refers to an individual’s first name or first initial and last name, a home other physical address, a social security number, a driver’s license number or state identification card number, and information concerning a minor that is collected in combination with one of the foregoing identifiers.

Health-related information refers to 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 similar data.

Bottom line, is the Maine Act a positive development?

While the goal of preventing predatory marketing practices toward minors is laudable, this approach appears to have some flaws.

One such flaw is that marketing, especially online marketing, is not necessarily confined by state boundaries. It’s natural that emails cross state lines. Indeed, when mass emails are sent (hopefully, complying with the Can-Spam Act), the email senders do not necessarily know where the email recipients on their lists live; it’s safe to say that email lists include recipients from various states. Furthermore, Web sites are viewable nationwide (indeed, worldwide), and they aren’t available only in a specific state.

Should Maine, just one small state out of Fifty, be able to force the issue of compliance practices for national marketers? This likely should be addressed at the federal level to achieve national uniformity. While it may or may not be that some of Maine’s ideas may ultimately deserve national consensus, that may not be for Maine alone to decide.

Furthermore, Maine’s strict prohibitions may not be perceived favorably on reflection even among minors within Maine’s borders. For example, for users over 13, Facebook reportedly uses personal information for the offering of services. Under the Maine regime, those services may become unavailable to Maine’s minors.

Perhaps also Maine minors no longer would receive marketing information they may deem wonderful, such as information relating to test taking services, athletics endeavors, and position opportunities. The point is that Maine minors may not perceive all marketing to Them as truly predatory.

It will be interesting to see how the Maine experiment plays out. Will it lead to laws in other states? Will it lead to federal legislation? Will it cause a backlash within Maine’s own borders. Stay tuned.

FindLaw columnist Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP (http://www.duanemorris.com) where he focuses on litigation matters of various types, including information technology and intellectual property disputes.  His Web page is http://www.sinrodlaw.com and he can be reached at ejsinrod@duanemorris.com.  To receive a weekly email link to Mr. Sinrod’s columns, please send an email to him with Subscribe in the Subject line. 

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