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Maine Attorney General Agrees Not to Enforce New Marketing Law; Court Says Third Parties Are on Notice that Private Cause of Action Could Face Constitutional Challenge

Earlier today, the U.S. District Court in Maine entered a stipulated order of dismissal in the court challenge to Maine's recently enacted law that prohibits the collection, receipt and use of personal information and health-related information from minors for marketing purposes without first obtaining verifiable parental consent.  

The law was going to take effect on September 12, 2009, but a coalition of publishing and educational groups challenged the law on constitutional grounds, arguing that the law was overbroad and restricted First Amendment rights.

The court dismissed the complaint because the Maine Attorney General agreed not to enforce the law. The court held that the plaintiffs met their burden of establishing a likelihood of success on the merits of their First Amendment claims. Maine's Attorney General acknowledged her concerns over the substantial overbreadth of the statute and agreed not to enforce it. She has also represented that the Maine Legislature will be reconsidering the statute when it reconvenes.

The court also stated that, as a result, third parties are on notice that a private cause of action under the marketing law could suffer from the same constitutional infirmities. This appears to be an effort by the court to discourage individuals and attorneys from filing a private cause of action to enforce the law.

We will keep you apprised of further developments in this area.

This client alert is a publication of Loeb & Loeb LLP and is intended to provide information on recent legal developments. This client alert does not create or continue an attorney client relationship nor should it be construed as legal advice or an opinion on specific situations.

For more information, please contact a member of Loeb & Loeb's Advertising & Media Group.

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