Products or Services That Cannot Be Sold To California Minors Cannot Be Advertised To Them Online, Either

by Sheppard Mullin Richter & Hampton LLP
Contact

California Governor Jerry Brown recently signed into law S.B. 568, the first bill of its kind in the nation. S.B. 568 enacts two new statutes under the title “Privacy Rights for California Minors in the Digital World.” The first, Business and Professions Code section 22580, prohibits advertising certain products to minors online. The second, Business and Professions Code section 22581, requires businesses to provide an online “eraser button” for remorseful minors (see blog post here).

The new advertising law takes effect January 1, 2015. It applies to websites and mobile apps primarily directed to minors, but, unlike some other statutes directed at online protection of minors, it does not stop there. It also applies to any website or app the provider knows to be used by minors that markets or advertises to minors based upon information specific to the minor. For example, it apparently would apply to a website or app that delivers behaviorally targeted advertising, or advertising based on information gleaned from a minor’s online profile.

The new law prohibits marketing or advertising certain categories of products. The common feature of the enumerated products or services is that they are illegal to actually sell to minors in California, such as tobacco, alcohol, firearms, fireworks, spray paint, lottery tickets, tattoos, or (so appropriately Californian) tanning bed services or tanning devices. Advertising service providers that are notified by a website operator that the site is directed to a minor are also subject to the new law’s restrictions.

Notably, there is a “safe harbor” if the website takes “reasonable actions in good faith designed to avoid marketing or advertising” as prohibited by the law, including notifying its advertising service provider that its site is directed to minors. Further, the marketing and advertising restrictions do not apply to “the incidental placement of products or services embedded in content” if the content is not distributed at the direction of the website operator (for example, user-generated content).

In addition, the new law provides that website and app providers are not required to collect or retain age information. Thus, at least for websites and apps not primarily directed at minors, the new law may create an incentive to avoid collecting age information, in order to avoid the knowledge that the website or app is being used by minors that could trigger the application of the law.

The new law has been criticized by online advocates such as the Center for Democracy and Technology, which has argued that its definition of what websites or apps are “directed at minors” is unconstitutionally vague, and will result in the restriction of distributing constitutionally protected information to young adults and minors in violation of the First Amendment.

The new law would also prohibit website and app providers from knowingly using, disclosing, compiling, or allowing a third party to use, disclose, or compile a minor’s personal information for the purpose of marketing or advertising prohibited products or services. The statute, however, does not define what constitutes a minor’s “personal information.” Thus, some argue, the scope of this prohibition is impermissibly vague, which makes it onerous or impossible to know how to comply with it. Moreover, this part of the statute also runs smack up against the federal Children’s Online Privacy Protection Act (“COPPA”), which generally prohibits operators of websites or online services directed to children under 13 from collecting the child’s “personal information” (which is defined by the federal statute) unless the operator has the child’s parents’ verified consent. Opponents to the new California law argue that it is preempted by COPPA, given the apparent conflicts between the two statutes’ prohibitions and requirements. Opponents also argue that, if other states follow California’s lead, websites will be subject to a myriad of many different regulations, making compliance for online businesses even more complicated and costly.

The new California privacy law does not independently provide a private right of action or otherwise specify the consequences for failure to comply. However, once the law goes into effect in 2015, it could potentially be enforced by a state or local enforcement agency under statutes such as California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 in action for injunctive relief, and could potentially be cited as the basis for private lawsuits under those statutes.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Sheppard Mullin Richter & Hampton LLP | Attorney Advertising

Written by:

Sheppard Mullin Richter & Hampton LLP
Contact
more
less

Sheppard Mullin Richter & Hampton LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.