Posts Tagged Maine statute

On the 2010 Marketing Law Horizon

Posted by ekabak in Gift cards, Marketing Law, marketing to children on January 19th, 2010

  1. The Maine Predatory Marketing To Minors legislation, passed last year and then called “unconstitutional” by the Maine Attorney General, in response to a coalition effort in which PMA played a role, is now the subject of a new bill.  This new bill would repeal the original and enact a radically reshaped one, restricted its scope to pharmaceutical marketing to minors.
  2. Several FTC and FTC initiatives/workshops and the like are focusing on marketing to children, food standards and empowering parents to control what content is presented on TV and the internet.  It appears there is a joint effort of both agencies to treat minors , even beyond COPPA, as a specially protected class with respect to advertising
  3. A new proposed federal regulation under the Credit Card Act of 2009 clarifies rules concerning expiration dates and dormancy charges of gift cards.
  4. New state legislation is aimed at Advance Consent Marketing,including in Kentucky, Maine and New Hampshire. These are, in the judgment of some, part of efforts for greater transparency in dealing with consumers, but also have the effect of making sales, even with legal disclosure, harder to close.

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BREAKING NEWS: Maine AG will not enforce statute;court says parties on notice that private suits could be subject to constitutional challenge

Posted by Rob Fields in Marketing Law, marketing to children on September 10th, 2009

PMA is pleased to report that on September 9, 2009,  the U.S. District Court in Maine entered a stipulated order of dismissal in the court challenge to Maine’s recently enacted law that prohibits the collection, receipt and use of personal information and health-related information from minors for marketing purposes without first obtaining verifiable parental consent.  (We reported on the law and PMA’s involvement in these matters in an earlier blog post.)

The law was going to take effect on September 12, 2009, but a coalition of publishing and educational groups challenged the law on constitutional grounds, arguing that the law was overbroad and restricted First Amendment rights.

The court dismissed the complaint because the Maine Attorney General agreed not to enforce the law.  The court held that the plaintiffs met their burden of establishing a likelihood of success on the merits of their First Amendment claims.  Maine’s Attorney General acknowledged her concerns over the substantial overbreadth of the statute and agreed not to enforce it.  She has also represented that the Maine Legislature will be reconsidering the statute when it reconvenes.

The court also stated that, as a result, third parties are on notice that a private cause of action under the marketing law could suffer from the same constitutional infirmities.  This appears to be an effort by the court to discourage individuals and attorneys from filing a private cause of action to enforce the law.

We will keep you further posted on the law and urge any business desiring further clarification to seek counsel from their attorneys.

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