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THE UNINTENDED CONSEQUENCES OF UTAH HB 353

06 Mar 2009

I've been following the development of Utah HB 353 (here, here, and here), which has now passed the Utah House by a 70-2 vote, and is on its way to the Senate. In a nutshell, the bill would levy fines on retailers who advertise that they do not sell M-rated games to minors, but then proceed to do so.

On its face, the bill sounds eminently reasonable, but it hides a grievous unintended consequence, as noted by ESRB President Patricia Vance in an open letter on Kotaku:

While the intent of this legislation would be to hold retailers accountable for compliance with their stated policies – presumably in that negligible 6% of instances where they fail to comply – the unfortunate reality is that it would introduce a liability that will likely force many retailers to seriously consider abandoning their voluntary policies and ratings education programs, undoing years of progress made on behalf of parents and their children. [...]

It would effectively penalize responsible retailers that have policies, and provide safe harbor for retailers that refuse to adopt a responsible policy in the first place.

Simply put, this bill would levy fines against retailers. Retailers, being for-profit enterprises, are going to do whatever it takes to not get fined. But they're also going to take the path of least resistance (i.e. least cost) to get there. This has nothing to do with retailers wanting to poison childrens' minds with adult content; it's just capitalism. (And whether or not that's a good thing is another debate entirely.)

The way this bill works, the easiest thing for a retailer to do is simply to not advertise their adherence to the ESRB system. This way, they're completely immune to penalty should an M-rated game subsequently get sold to a minor, whether accidentally or deliberately. The retailer's problem is easily solved by simply sidestepping the bill, wasting lawmakers' time and taxpayers' money in the process.

But the real problem, the unintended consequence against which the ESRB, ESA, VGVN, myself, and an increasing number of others are arguing, is that the likely reduction -- or even total disappearance -- of ESRB-related advertising has a negative impact on the cornerstone of the system's effectiveness: public awareness.

It's already well-known that many parents remain, at least to some degree, ignorant of the ESRB ratings system. In order for the system to work, parents must be educated about it. The ESRB ad blitz and retailer partnerships over the past several years have made dramatic strides in parents' awareness and understanding of the system, but this bill threatens to halt those advancements.

Ironically, the first bill proposed by anti-game advocates that actually has a chance of making it into law -- without a serious First Amendment challenge -- may end up gutting the very system that currently keeps M-rated games out of the hands of minors roughly 80% of the time.

Utah residents: write your senate representative and express your opposition to HB 353, before our state legislature destroys the very efforts our industry established to appease them in the first place.

Posted In:

politics video-games