AUSTIN, Texas — A new bill in the Texas state legislature would require online retailers to implement age verification of purchasers before selling “obscene devices” to anyone in that state.
SB 3003 was introduced by Republican state Sen. Angela Paxton, who was the lead sponsor of Texas’ HB 1181, the age verification bill for adult sites currently awaiting a decision from the Supreme Court in the pivotal case Free Speech Coalition v. Paxton. She is also the wife of Texas Attorney General Ken Paxton, named as respondent in that case.
As with AV laws for viewing adult content online, such a law would prioritize the state’s interest in protecting minors over adults’ rights to privacy. According to industry attorney Lawrence Walters, however, this type of bill raises different issues than age verification laws for adult websites.
“The devices at issue are not likely to be deemed expressive works, and therefore the First Amendment would not be implicated,” Walters told XBIZ. “Instead, restrictions or prohibitions on the sale of ‘obscene devices’ trigger substantive due process concerns under the Fourteenth Amendment. The government is prohibited from burdening an individual’s right to engage in private intimate conduct of his or her choosing.”
Laws that interfere with that right have been struck down in several states, Walters noted — including in Texas.
There is also the separate issue of imposing local requirements on internet-based sellers with no physical presence in the state.
“Such regulatory obligations can run afoul of the Commerce Clause or be deemed outside the jurisdiction of state regulation,” Walters said. “A court may be called upon to decide whether Texas has the authority to regulate ecommerce retailers located outside the state.”
According to Betty's Toy Box founder and CEO Carolyn Eagle, such a law would likely discourage casual online browsers.
“Sales would definitely drop from Texas, at least in the short term,” Eagle told XBIZ. “I suspect some people may return to online shopping if the process proves to be secure. But for those first-time shoppers who may be nervous to begin with, this is going to deter them from visiting.”
Like most ecommerce adult stores, Betty's Toy Box does not currently use age verification on its site. According to Eagle, the most personal information the site currently collects is addresses and credit card numbers.
“It all sounds like a potential logistical nightmare,” Eagle said. “Ideally, what you would want is an app that can ask for age verification only from those people whose geolocation is in Texas so that the rest of your customers aren't harassed. On the other hand, stores could just decide to stop shipping to Texas.”
That potential scenario mirrors what has already happened in many states with age verification laws for adult content, where sites like Pornhub have discontinued service.
SB 3003 is not the only legislation concerning pleasure products currently under consideration in Texas. Another bill, HB 1549, would ban big-box retailers and other stores not considered “sexually oriented businesses” from carrying sex toys.
