February 13, 2006
The Association of National Advertisers (ANA) will soon be filing a “friend of the court” brief in support of a lawsuit in federal court which challenges Utah’s Child Protection Registry Act. We need your help with providing specific examples of how the Act imposes significant costs and burdens on the ability of legitimate marketers to communicate with consumers through e-mail.Background
The Utah Child Protection Registry Act became law in 2004. It purports to protect minors in the state from e-mail that “advertises” products or services that they may not legally purchase or contains material that is “harmful to minors.” Under the regulatory regime, parents register their children’s e-mail address with the registry. Marketers are required to scrub their e-mail lists against the registry to ensure that no “inappropriate” messages are sent to minors. There are stiff civil and criminal penalties for failure to comply with the Act.
Michigan has a similar child protection registry and several other states are currently considering legislation to adopt such a regime.
We agree that children should be protected from “inappropriate” messages, but these state-specific registries raise serious First Amendment and interstate commerce concerns. We believe they are also pre-empted by the federal CAN SPAM Act, which ANA and other industry groups supported.
The Free Speech Coalition, a group of companies in the adult entertainment business, has filed a lawsuit in federal court in Utah challenging the state registry. The case raises serious issues about maintaining free expression on the Internet as well as its use as a commercial medium.
ANA and several other marketing groups will be filing an amicus brief with the court in the next several weeks. We believe it would be very helpful to give the court a more complete understanding of the widespread impact of the Utah law on all marketers, beyond the adult entertainment industry.
We need specific examples of the costs and burdens imposed on marketers by the Utah law. It would be very helpful if companies were willing to provide affidavits describing how they use e-mail as a commercial medium and how the Utah law would affect those efforts.
Please contact Dan Jaffe in ANA’s Washington, DC office at djaffe@ana.net or (202) 296-1883 if you have any questions or are able to provide examples of the problems posed by the Utah registry.
Thank you for your assistance.