KMK Law Intellectual Property Blog

By now, you may have heard the 124^th Maine State Legislature recently enacted “An Act to Prevent Predatory Marketing Practices Against Minors.”  This law, at least on its face, appears to prohibit both the collection of personal information from a minor for marketing purposes without first having obtained verifiable parental consent as well as the actual marketing to that minor by means of such information acquired without the requisite consent.  “Verifiable Parental Consent” is defined in the statute as “any reasonable effort… to ensure that a parent of a minor receives notice of the collection of personal information.” 

Maine seems to define a “minor” as an individual under 18 years of age.  So, while, some of these minors can obtain gainful employment beginning at age 16 (unless, of course, such employment is considered hazardous), you will not be able to market to these youngsters in an effort to get at their hard-earned dollars as of September 2009.  Strangely, Maine also prohibits minors from getting body-piercings without a parent’s consent, so it seems that Maine thinks “marketing” is akin to body-piercing in the “things that are bad” category.   

The now-significantly pared down Children's Online Privacy Protection Act (“COPPA”) already made a federal requirement for children under 13 what Maine is now trying to do for children up to age 18.  As you may know, COPPA is responsible for giving us those little website “check boxes” where we can indicate that we are at least 13 years of age before we provide information such as our name, address, and Social Security Number.  Presumably, companies will now need to add another check box on their verification screens that reads, “I don’t live in Maine.”  Interestingly enough, the Maine law does not seem to be limited to information that is collected online.  So, a 16 year old who wants to sign up to run in a race in Maine (perhaps the Maine Lobster Festival 10K?) may now be required to obtain parental consent to provide his registration information if a company (say, New Balance, maybe?) wants to mail out new product information to the race participants. 

From a legal standpoint, it appears that now that this law has gone into effect, it will likely render all previously-collected personal information collected from Maine residents between the ages of 13 and 18 unusable for marketing purposes.  And we’re not just talking about information that a company has collected itself; it would include information collected by third parties – such as Facebook and MySpace – that companies purchase for marketing purposes.  The purchase and sale of this kind of information is big business, and it would seem that both the buyers and sellers of this information now need to peruse their data, identify what part of it comes from the prohibited group of Maine residents, and purge it.  Strangely, this can create a situation where marketing data obtained from a 10 year old with his parent’s consent is “good data” while the same data from a 17 year old in Maine is suddenly “bad data.”  At least for now, companies may just decide that, particularly in view of the offline restrictions, it is simply not worth the trouble of collecting any marketing data for Maine residents.