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Business Community Has Important Victory in Challenge to Maine Children's Privacy Law

The business community has won an important victory in a lawsuit challenging a Maine law that severely restricts the collection, transfer and use of "personal information" or "health-related information" from minors.  The Maine Attorney General has publicly committed not to enforce the law, which was scheduled to take effect on September 12th.  Although the federal court stopped short of granting a preliminary injunction, it sent a clear message that any private cause of action under the new law could suffer from "constitutional infirmities."  We are very hopeful that this will give the business community an opportunity to work with the Attorney General, the bill's sponsor and others in the Maine Legislature to resolve the serious defects with the legislation.

On August 26th, a lawsuit was filed in federal court in Maine by the Maine Independent Colleges Association, the Maine Press Association, NetChoice and Reed Elsevier challenging the Maine "Act to Prevent Predatory Marketing Practices Against Minors."  The lawsuit argues that the law is unconstitutional on both First Amendment and dormant commerce clause grounds and is preempted by the federal Children's Online Privacy Protection Act (COPPA).

After hearing arguments yesterday on the motion for a preliminary injunction against the Act, the federal court found that the Plaintiffs had "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 court's order specifically noted that the Attorney General has publicly acknowledged First Amendment concerns and has committed to not enforce the Act.  In addition, the order put potential third parties on notice that any private cause of action under the Act could suffer from "the same constitutional infirmities."  We are very hopeful that this will discourage any such private lawsuits.  With these strong findings of the court, the parties agreed to dismiss the lawsuit without prejudice, allowing the parties to relitigate if some third party tries to enforce the law. 

ANA has provided financial support for the lawsuit and we are pleased with this result.  Also, there has been a commitment to revisit and consider carefully revising the law when the Maine Legislature reconvenes this January.

If you have any questions about the Maine lawsuit, please contact Dan Jaffe (djaffe@ana.net) or Keith Scarborough (kscarborough@ana.net) in ANA's Washington, DC office at (202) 296-1883.

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ANA's Washington, DC office works to protect the ability of all marketers to communicate effectively with consumers.   The scope of legislation, regulations, and court cases impacting the marketing community continues to be extremely broad, extending to issues as diverse as online privacy, prescription drug advertising, restrictions on the tax deductibility of advertising costs and the regulatory powers of the Federal Trade Commission.

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Compendium of Legislative, Regulatory and Legal Issues

ANA's Washington, DC office plays a leading role in protecting the ability of all marketers to communicate effectively with consumers. At the end of each year, we prepare a Compendium which describes our efforts on the broad range of issues we have faced. 

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