New Maine Privacy Law Restricts Marketing to Minors

The state of Maine recently enacted legislation that will effectively prohibit direct marketing of products and services to Maine residents under the age of 18.

The new law, which takes effect in September, prohibits the collection of personal information from a minor without first obtaining the verifiable consent of the minor’s parent or legal guardian. (“Personal information” is defined to mean (1) a person’s first name or first initial and last name, (2) a home or other physical address, (3) a Social Security number, (4) a driver’s license or state identification card number, and (5) any information concerning a minor that is collected in combination with one of the identifiers described above.) The law also prohibits the use of a minor’s personal information for the purpose of marketing a product or service to that minor—with no exceptions, even if the information was collected with parental consent. The law also imposes equivalent restrictions with respect to the collection and use of health-related information.

The Maine law is substantially more restrictive than the Children’s Online Privacy Protection Act (COPPA), the federal law that governs the collection of information from children. While COPPA applies only with respect to the collection of information online, the Maine law applies to both online and offline activities. In addition, COPPA only applies to children under age 13, but the Maine law applies to all minors (a term not defined in the statute, but presumably meaning anyone under age 18, which is the age of majority in Maine). Unlike COPPA, the Maine law also gives private litigants the right to sue for damages and injunctive relief and to recover attorneys’ fees in the event of a successful lawsuit.

It remains to be seen how Maine courts and regulatory authorities will interpret and enforce the new law. For example, the scope of its application to not-for-profit organizations, such as colleges and universities that might wish to provide promotional materials to teenagers, is unclear. It appears likely at this stage that most marketers will implement age and residency screening measures at every point where consumer data is collected and will no longer permit Maine residents who are minors to participate in activities that require the collection of personal information, such as entering sweepstakes or signing up for online newsletters. Compliance will present particular difficulties for marketers whose databases do not currently permit them to identify minors by state of residency.

In the wake of the law’s enactment, industry groups are examining the possibility of seeking a legislative modification of the act or challenging it in court. However, with the state legislature not scheduled to reconvene until January 2010, marketers should be prepared to implement compliance mechanisms in the meantime.