In Michigan and Utah, companies now face stiff penalties and criminal prosecution if their Internet ads for products like alcohol, tobacco, gambling, lotteries or pornography end up in a child's e-mail box. Even an e-mail ad for an R-rated movie, something that is legal for kids to see with an adult, could violate the new laws, which went into effect last month.
Under Michigan's law, violators face fines up to $250,000 per day and up to a year in jail. In Utah, violators pay $1,000 for each message, are subject to criminal charges and face civil suits from parents.
What advertisers find particularly troubling is language in the Utah law that prohibits any e-mail ads that could be considered "harmful to minors." The law outlines "nudity, sexual content, sadomasochistic content, sexual excitement or sadomasochistic abuse when it appeals to the prurient interest of sex in minors" as examples of what would be deemed harmful.
"This could be an ad for an R-rated movie in some communities in Utah," said Mary Ellen Callahan, a Washington lawyer with clients affected by the laws. "These laws could significantly harm advertisers and don't protect children."
To combat what it sees as a growing threat that could block legitimate advertising to adults, the Association of National Advertisers said it is considering filing a lawsuit against the two states.
"What gets put on the list of prohibited products is open-ended," said Dan Jaffe, ANA's evp of government relations. "If some product gets controversial, does it go on the list? People can start picking and choosing."
Other states, such as Illinois, are considering similar legislation. Given people's negative views of unsolicited e-mails, advertisers fear the movement could gain enough popularity that Congress will eventually pass national do-not-e-mail legislation.
Supporters of the laws counter that consumers should decide what type of commercial speech they want to see.