Maine’s restrictive new law on marketing to children took effect on September 12, 2009. The statute provides that it is illegal to collect or receive health-related or personal information for marketing purposes from a minor child without the verifiable consent of that minor’s parent or guardian. The consent required is any reasonable effort, given available technology, to ensure that a parent or guardian is notified of, and authorizes, any information collection, use, and disclosure covered by the law before the information is collected. The personal information covered by the law includes name, home or other physical address, Social Security number, driver’s license or state identification card number, and any other information collected about a minor in combination with these types of identifiers.
The statute also prohibits “predatory marketing,” regardless of parental consent. Specifically, the law bans any use of health-related or personal information regarding a minor for the purpose of marketing a product or service or promoting a course of action relating to a product.
The statute provides that Maine’s attorney general may pursue an alleged violation of the new statute as an illegal unfair trade practice. Maine Attorney General Janet Mills has pledged that she will not enforce the law because she has concerns about its constitutionality. However, the law also includes a private right of action for any person who is the object of predatory marketing or illegal information collection. Prevailing plaintiffs may obtain both injunctive relief and damages, either the greater of actual damages or up to $250 in statutory damages per violation.
In August, a coalition of companies sued to obtain a preliminary injunction to block the Maine law from going into effect. The parties agreed to dismiss the suit just days before the law became effective, after the Maine attorney general opposed an injunction because of her prior pledge not to enforce the measure. Although the dismissal order warns that private challenges could suffer constitutional infirmities, it remains possible for individuals to file private lawsuits. Given the significant attention to the law, its authors have announced their intent to revisit the statute when the Maine legislature reconvenes.