Adlaw By Request : Advertising & Marketing Lawyer & Attorney : Reed Smith Law Firm : AdLaw By Request & KidAdLaw

On June 2, 2009, the Governor of Maine signed into law an Act To Prevent Predatory Marketing Practices against Minors, codified at Maine Rev. Stat. Ann., tit. 10, ch. 1055, § 9551, et seq. Although its title would seem to apply to “predatory” practices, and earlier versions focused only on health-related information, the enacted bill effectively extends COPPA protection to those younger than 18 (the age of majority in Maine) rather than just those younger than 13.

Under the new law, which is effective 90 days after the date of enactment, it is unlawful to collect individually identifiable information about “minors” without verifiable parental consent, if the information is going to be used for marketing purposes. The new law comes with a private right of action that allows for damages up to $250 per violation. (It is not clear how “per violation” will be defined, and whether a person can bring the action for violations involving only his or her own personal information. At the very least, the possibility of a class of consumers seeking recovery of up to $250 per violation is present.) The plaintiff also is entitled to attorneys’ fees and costs, and the amount of the damages can be trebled if the violation was willful.

The new law also creates a civil penalty, which appears to be available only in the case of an action brought by a state regulator, of “no less than” $10,000 per violation. The penalty goes up to $20,000 for subsequent violations of the law.

What This Means

Although regulations could be developed that temper the possible effect of this new Maine law, on its face, it essentially extends the Children’s Online Privacy Protection Act (COPPA) to cover teenagers. What is missing, however, is any reference to the exceptions in COPPA that permit marketers to offer children the ability to provide their online contact information in order to participate in a one-time request for a service, like entering a sweepstakes. Thus, a marketer is faced with the prospect of having to obtain COPPA-style verifiable parental consent from a teenager (under 18) in order to include a minor from Maine in his promotion, or voiding the promotion in Maine (at least for those under the age of majority).

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Children who are obese or who have high cholesterol also show early signs of heart disease, according to a new study. Results of the study were unveiled at a recent American Heart Association conference. The study, conducted by researchers from the University of Missouri Kansas City School of Medicine, has not yet been published.

The study was small, involving 70 children ages 6 to 19, and experts said the results would need to be replicated to be considered conclusive. But the researchers' method of measuring artery wall thickness, using ultrasound technology, is considered to be a reliable indicator of heart disease risk.

"I think this is a red flag," said the study's lead author, Dr. Geetha Raghuveer, a cardiologist and associate professor of pediatrics at the University of Missouri Kansas City School of Medicine. "These kids are more similar to middle-aged adults."

The study is considered by many to be part of a growing body of research that childhood obesity in the United States likely will result in increased incidents of heart disease as children age.
 
Read more about the study and surrounding issues at nytimes.com.

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The Children's Advertising Review Unit (CARU) has referred two cases to the Federal Trade Commission because the advertisers failed to substantively respond to its inquiries.

CARU examined advertising for the "Spray Racer," a toy vehicle powered by water and air that is compressed when a child manually pumps a holding tank. CARU questioned whether a TV commercial showing a child pumping once to launch the car at a speed of 272 scale miles per hour was an accurate reflection of the product's performance.

The self-regulatory group asked the advertiser, Summit Products, whether substantial pumping was in fact required to maintain the speed depicted. When the advertiser did not respond, CARU referred the matter to the FTC.

CARU also referred to the FTC a case involving the website www.virtualfamilykingdom.com after the company that operates the site allegedly did not respond to CARU's inquiry regarding apparent failures to comply with the Children's Online Privacy Protection Act of 1998 (COPPA).

Upon reviewing the site, CARU noted that it had an option whereby personal information could be collected from children without first obtaining parental permission, and that the site failed to include offline contact information, as required by COPPA. In addition, the posted privacy policy did not conform to actual practices on the site, CARU claimed.

View a summary of the "Spray Racer" case and of the Virtual Family Kingdom case at caru.org.

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