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In politics, we often hear people talk about unintended consequences. In fixing one problem, we sometimes lay the seeds of the next one. Consider what has happened in Maine. This past spring, the Maine Legislature passed a bill addressing drug marketing practices to minors. The measure, passed with lots of fanfare from consumer protection advocates intended to police the branding and messaging targeted to people under the age of 18 y.o. Its passage represented the first attempt by officials anywhere and in any state to address these concerns. A legal review of the bill language, however, shows that the manufacturers first amendment right to free speech would likely be comprised if fully enacted.  

We have an update on that bill below. Courtesy: Kennebec Journal and National Legislative Association on Prescription Drug Pricing.

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A legislative panel decided Friday to recommend full repeal of a law that seeks to prohibit predatory marketing to teenagers, saying it could not fix concerns about its constitutionality. The Judiciary Committee voted to tell legislative leaders that “An Act to Prevent Predatory Marketing Practices Against Minors” should be removed from Maine statutes as soon as possible when the Legislature returns in January. 

“The existing law as written will not pass constitutional muster,” said Sen. David Hastings, R-Fryeburg.

The law prohibits Web sites and other entities from collecting health-related information for marketing purposes from those younger than 18 without parental consent.

But because of the way it was drafted, it goes far beyond that and far beyond what Sen. Elizabeth Schneider, D-Orono, said she was hoping to do when she sponsored the legislation last year.

“The one positive in all of this is, even the opponents acknowledge there is a problem,” she said. “That speaks to the need for something to occur to protect minors’ information, especially when it is sold.”

Representatives of health insurers, newspapers, colleges and Internet search engines told the committee Thursday they would be prevented from gathering or using information from teenagers under the law. Even before it went into effect in September, a lawsuit filed in federal court alleged the law violates free speech rights protected by the First Amendment.

In response, Attorney General Janet Mills filed a brief saying she shared some of the concerns raised in the suit and would not enforce the law. The issue then went back to the Legislature. Schneider said she was disappointed in the recommendation and promised to introduce a narrowed proposal. “There’s incredible opposition to this because there’s big bucks at stake,” she said.

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Have thoughts about this blog posting, or questions and comments in general. HFA’s Office of Public Policy stands ready to provide whatever help it can in addressing your advocacy concerns.

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