1. Mona Said,

   Correct me if I’m wrong, but is this regulation even enforceable? After reading the entire truth in advertising chapter of title 13 I’m just not sure how any government government body could reasonably believe that this law will be in any way effective.

   1) An advertisement is defined as “any written, oral, or graphic statement or representation made by a supplier in connection with the solicitation of business. It includes, but is not limited to, communication by noncable television systems, radio, printed brochures, newspapers, leaflets, flyers, circulars, billboards, banners, or signs. It does not include any oral, in person, representation made by a sales representative to a prospective purchaser.”

   2) The ESRB rating system is not an advertisement by suppliers that retailers will not sell to minors. The ESRB rating system is arguably a device used to assist purchasers in determining whether to purchase the product based on the suggested maturity level of the game. So merely having the ESRB rating on the game really imputes nothing to the retailer.

   3) Advertisements don’t include oral, in person representations of sales representatives. So a sales person could still make a statement concerning the ESRB to potential purchasers without that statement being an advertisement.

   4) The bill states requires that the seller “advertises that the person will not H. [ sell ] provide .H a good or service labeled with an age restriction or recommendation to a H. [ person under ] buyer subject to .H the age restriction or recommendation”

   5) interpreting employee representations as “advertisements” creates a very obvious ambiguity in the law, which could in all likelihood render it invalid.

   Absent some representation on the part of the retailer to potential purchasers that they card buyers, I’m not sure how this law is effective. Even having a poster that lists the ESRB ratings for educational purposes short of saying “we won’t sell to minors,” (I’ve never seen any such sign saying they won’t, but I may be missing something) lacks the requisite “statement and representation” that they won’t sell requirement.

   That doesn’t mean I won’t laugh if a court finds this a transparent back-door attempt to regulate the sale of protected speech based on content, but I’m just sayin’– Dan, you mentioned this law is “without teeth”, but the entire law just seems to lack any kind of substance period now and seems like useless, impractical verbage.

2. Dan Said,

   BTW Mona, this series was Liz’s post, not mine

   It’s without teeth at the very minimum; overly broad and certainly vague. And yes, it’s obvious to anyone with a lick of intelligence that ESRB ratings do not constitute advertisements, as they are not objectively or by any reasonable subjective interpretation intended as solicitations of business. ESRB ratings exist regardless of whether a game is actively being sold; it need only be available for an ESRB rating to be merited. The rating has no direct effect on commercial sales, and to the extent it might have an indirect effect it’s probably impossible to argue that it creates sales; it actually most likely inhibits sales due to acting as a restriction and a deterrent.

   Also, I think the definition of an advertisement being made hingent on “in connection” with business is dangerously vague.

   This bill was a train wreck from the beginning.

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