Maine Agrees Not to Enforce Predatory Marketing Law

In a significant victory to marketers and the press, the Maine Attorney General has agreed not to enforce the state's Predatory Marketing Law when it is scheduled to take effect on September 12, 2009. In addition, private plaintiffs were warned that the statute faced significant constitutional infirmities.

According to a September 9, 2009 order dismissing the action without prejudice, the state agreed that the law as written was overbroad and a violation of First Amendment rights. The stipulated order of dismissal provides:

The Court finds that the Plaintiffs have met their burden of establishing a likelihood of success on the merits of their claims that Chapter 230 is overbroad and violates the First Amendment. The Attorney General has acknowledged her concerns over the substantial overbreadth of the statute and the implications of Chapter 230 on the exercise of First Amendment rights and accordingly has committed not to enforce it. She has also represented that the Legislature will be reconsidering the statute when it reconvenes. As a result, third parties are on notice that a private cause of action under Chapter 230 could suffer from the same constitutional infirmities.

In light of these considerations, the parties have agreed to a dismissal of this action without prejudice....

While arguably well intentioned in theory (restricting marketing of pharmaceutical products to minors without parental consent), the law sought to impose greater restrictions on marketing practices well beyond the Children's Online Privacy and Protection Act ("COPPA"). COPPA, a widely-respected federal law, precludes the collection of online data from minors thirteen or under without verifiable parental consent. The Maine law went well beyond the under 13 online restrictions, barring all persons from "collecting, transferring, or using information from or about minors" for both commercial and noncommercial purposes without verifiable parental or guardian consent. Thus, the statute applied to all minors (under 18) and did not distinguish between online and offline collection practices.

The law was seen as applying to an extraordinary array of activities which went well beyond the law's original intent. Industry was greatly troubled by the seemingly impossibility of compliance (possibly obtaining online age verification) while facing the threat of third-party plaintiff's actions. Private cases should be squelched given the court's pronouncement and the Attorney General's position as to enforceability.

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