The states aren’t playing around, either. Michigan’s new fines go all the way up to $250,000 per day for violators, while in Utah, each message could cost the sender $1,000. Both carry potentially lengthy jail time as well.
The problem, according to lawyers familiar with the new laws, is that the language is extremely broad.
“In Utah they are saying that any email that is harmful to minors can be prosecuted,” Joel Cohen, a Salt Lake City attorney, told XBiz. “Well, what does that mean? If I send you an ad for a candy bar that’s going to rot your teeth out can, you fine me a quarter-million dollars?”
Cohen admits the hyperbole in his example, and although sugar is not vilified in the new law, it does include “nudity, sexual content, sadomasochistic content, sexual excitement or sadomasochistic abuse when it appeals to the prurient interest of sex in minors,” and it includes advertisements sent by email, instant messaging, wireless phone or fax.
The law also has initiated a plan to let parents register their child’s email address with a state list, whereby companies that use email advertising will have to clean their email lists each month to ensure none of the registered addresses appear on them.
Representatives at the Association of National Advertisers (ANA) said a lawsuit is being considered to protest the new laws, especially since other states are now considering similar legislation.
“What makes these laws so dangerous and misguided is that they provide virtually unlimited discretion to regulators that raise extremely serious First Amendment, equal protection and commerce clause issues,” said Dan Jaffe, ANA's executive vice president of government relations. “While both states have begun to develop lists of covered product categories, including tobacco, alcohol and pornographic material, they have made clear that this list is not all inclusive.”
In other words, Jaffe said, the laws open up the possibility that if a company falls out of favor with the government, it might mysteriously find itself on the list.
“We are deeply concerned about the substantial burdens these laws will place on the advertising community,” he added. “Clearly, other states will follow in Michigan and Utah’s footsteps if these initiatives are allowed to stand.”