Legal Matters: Double Jeopardy Over State Do-Not-Mail Bills

Last year, 12 states had do-not-mail legislation under consideration. But none of the bills were enacted from those states, which included Hawaii, Illinois, Maryland, Michigan, New Hampshire, New York, North Carolina, Pennsylvania, Rhode Island, Tennessee, Vermont and Washington. In most instances, they died at the end of sessions when the legislatures adjourned.

This year, however, bills already have been refiled in some states, and new bills have been introduced in Connecticut, Florida and New Jersey. With varying enforcement mechanisms, the laws would prohibit mailing unsolicited direct marketing materials to persons who enter their names and addresses to state-maintained registries.

A Familiar Model
Legislation seeking to limit unwelcome mail generally is modeled after the federal National Do Not Call Registry established by the Federal Trade Commission (FTC) in 2003. Few pieces of legislation have engendered such strong and favorable public support. To date, more than 170 million telephone numbers have been registered — 62 million in the first year and almost 25 million more last year alone. Americans clearly don’t want uninvited phone calls.

Congress has reinforced the anti-telemarketing rule by passing the Do Not Call Improvement Act, which assured that telephone numbers in the registry won’t be removed automatically.

The FTC has put teeth into Do Not Call through aggressive enforcement actions. Orlando, Fla.-based Westgate Resorts recently received a civil penalty of nearly $1 million. Accumen Management Services agreed to pay more than $275,000 to settle charges. The FTC claimed these companies engaged in outbound telemarketing to consumers whose phone numbers were on the Do Not Call Registry without obtaining their express written consent or having an “established business relationship” with them.

Show It’s Under Control
The proven popularity of safeguarding American families from dinner disruptions has emboldened groups advocating do-not-mail laws. They’ve built their cases around both privacy and environmental concerns. The rhetoric can get quite harsh. The Tennessee bill, for example, refers to the proposed registry as a “junk mail opt-out list.”

Seize the moral high ground and demonstrate that measures are already in place to assure respect for consumers and the environment. There are, for example, voluntary programs that enable consumers to avoid unsolicited mailings, such as the Direct Marketing Association’s Mail Preference Service. A person may choose not to receive any advertising or to receive only certain categories of mail.

Such industry-sponsored initiatives allow consumers to control what goes into their mailboxes with some degree of precision, compared to the blunt instrument approach of legislative proposals.

Similarly, state legislators must be convinced that the catalog industry has become a leader in promoting sound environmental practices, including the use of recycled paper, support for sustainable forestry practices and promotion of end-user recycling programs.

Unlike the public demand for relief from unrequested telephone calls, there’s no similar clamor to restrict catalogs. To the contrary, surveys indicate that consumers find catalogs effectively increase the variety and value of purchase options; they also find them interesting and informative.

Not Like Do-Not-Call
The case against do-not-mail registries was stated clearly on April 1, 2008, by Maine Sen. Susan Collins, who authored the landmark Postal Accountability and Enhancement Act (aka postal reform act) in 2006:

Direct mail is in no way comparable to the unsolicited and invasive telephone calls that are curbed by the Do Not Call Registry. Direct mail imposes no burden on the public, it causes no interruptions, and I, for one, look forward to the … coupons I get in the mail. A do-not-mail registry would attempt to solve a problem that does not exist and would have devastating consequences for every home, community and business that relies upon our Postal Service.

George S. Isaacson is a senior partner with Brann & Isaacson. He represents multichannel merchants on tax matters and is tax counsel to the Direct Marketing Association. Reach him at gisaacson@brannlaw.com.