Utah's "Truth in Advertising" Games Bill Is Dangerously Wrong

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Inside proposed Utah games legislation "Truth in Advertising" bill H.B. 353 is an atom bomb in hiding. No, I don't mean the bit involving Jack Thompson, the controversial disbarred anti-games-violence activist who reportedly authored the thing. And I'm not talking about the part where hysterical Utah activists like Gayle Ruzicka (of the ultra-conservative Utah Eagle Forum) argue before committee that games like Grand Theft Auto "are the kind of things that are training our children" and "vile stuff."

No, the most recent amended version of H.B. 353 is a sobering bellwether of much worse to come if it passes the Utah state senate, as it now seems likely to. Why? Because instead of ensuring game retailers do as they say, the bill in fact encourages them to do the exact opposite and stop promising they won't sell Mature-rated games like Fable 2 and Fallout 3 and Resident Evil 5 to underage kids and/or teens.

That's because Utah's H.B. 353 effectively criminalizes retail sales of video games to customers who don't meet a game's ratings strictures.

Perhaps you thought sales to underage buyers were already criminal given the unprecedented levels of retailer sales-ratings compliance? They're not. The system's in fact entirely voluntary...and, to date, an enormous success.

According to an undercover U.S. Federal Trade Commission operation, only 20 percent of 13 to 16 year olds were able to purchase M-rated video games from eight retailers. More importantly, that number was down 42 percent in 2006 and 85 percent since 2000, when the FTC surveys started.

According to a Peter D. Hart Research Associates study, nearly 90% of you (that is, American parents with kids who play games) are aware of the ESRB's ratings and use them.

But activist legislators in Utah apparently don't consider 90% good enough, and they're using Utah's "truth in advertising" law as a launch pad to target stores that promote their adherence to an age-discriminatory sales policy (in essence, compliance with the Entertainment Software Ratings Board's ratings system). Under their proposed bill, If a store says it enforces the ESRB's ratings on a game then fails to do so, it could be liable for up to $2,000 in fines per incident.

The non-cynical view: H.B. 353 is an attempt to pull game ratings under the umbrella of Utah's prevailing "truth in advertising" guidelines.

The cynical view: The bill's promoters are trying to backdoor anti-ESRB legislation by using a potentially over-broad state policy to increase governmental control of private sector activities and declare self-regulatory triumphs null and void.

According to ESRB president Patricia Vance, in an open letter to "Utah's parents and leaders" published last Friday...

...when the Federal Trade Commission first began measuring retailer compliance with video game sales policies nationwide in 2000, a scant 15% of underage customers were turned away. However, the most recent such study reported in May 2008 found that national retailers refused to sell M-rated games to customers under 17 a remarkable 80% of the time, far surpassing the comparable rates of compliance for movies, DVDs, or music CDs rated for a mature audience.

What's more, says Vance...

...according to a recent audit, Utah video game retailers enforce their store policies regarding the sale of M-rated games an impressive 94% of the time — without any laws or requirements that they do so. That level of compliance took many years to achieve, and speaks to the strong commitment of video game retailers to do the right thing.

The ESRB opened its doors in 1994 in response to the Mortal Kombat / Doom violent content controversy. It's a non-profit, self-regulatory body created by the Entertainment Software Association, essentially a "by games publishers, for games publishers" organization to manage the games industry's relationship with the public. Its ratings approach parallels the Motion Picture Association of America's (MPAA) voluntary movie ratings system, e.g. PG, PG-13, R, etc. The ESRB's ratings, e.g. Mature, Teen, Everyone, etc. include age guidelines and content descriptors that cover labels ranging from "cartoon violence" and "simulated gambling" to "strong language," "graphic sexual content," and "nudity."

Under H.B. 353, if a retailer promotes itself as compliant with those ratings, then lapses — however isolated the incident — it could pay substantial fines or become entangled in costly governmental lawsuits.

Per Vance's note, let's say Utah's games retailers are noncompliant 6 percent of the time. With H.B. 353, that relatively trivial 6 percent could engender disproportionately substantial fines and legal fees severe enough to force (or at least incentivize) abandoning compliance with the ESRB's ratings system altogether.

Imagine the impact on the ESRB (not to mention the MPAA) if retailers like Walmart or GameStop suddenly pulled their voluntary endorsement.

The hypothetical emasculation (or even dissolution) of independent ratings institutions like the MPAA and ESRB could have disastrous ramifications for artists. Few consumers would support a completely ratings-free system, thus paving the way for draconian and bureaucratic government-created and enforced alternatives.

Does anyone fancy the notion of politicians deciding what is or isn't aesthetically acceptable? H.B. 353 doesn't empower them to, but it's a clear step (and precedent) in that direction.

Truth in advertising is important. No one wants to buy a "100% cotton" shirt that turns out to be 50% polyester or an LCD TV with a "full parts and labor three year warranty" that's only honored for one. Retailers have basic authenticity obligations and consumers should have the right to take action and/or pursue remuneration when a retailer engages in deceitful advertising.

But voluntary self-regulation that hinges on an aesthetically amorphous value system resides in a legal gray area. No one's going to disagree that selling a 50% polyester shirt as "100% cotton" is ethically wrong, deserving of legal consequences. But games ratings aren't based on scientific analyses of the fiber content of a piece of fabric, and there's plenty of disagreement over whether it's the responsibility of stores or parents to enforce them. For some, game and movie ratings are simply advisory, and it's up to parents to monitor what kids are up to, not some for-profit business, and most certainly not a bunch of at best tenuously culturally clued-in government bureaucrats.

The question, then, is would you ever want the government taking the leading role in policing the sales of aesthetic artifacts, e.g. books, movies, games, music, etc.? Because that's what H.B. 353 amounts to, and precisely why it needs to be overturned if it's passed.

Matt Peckham thinks the government should never (whether directly or indirectly) be the custodian of artistic values. You can keep tabs on him at twitter.com/game_on.

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