American Society of Magazine Editors

Oregon and Hawaii Pass Advance Consent Marketing Bills

After considering bills regulating free trials and automatic renewals in the last two legislative sessions, this year both Oregon and Hawaii passed legislation related to these advance consent marketing techniques commonly used by magazine publishers.

MPA’s intervention in Oregon helped secure preferential treatment for magazine publishers, including provisions for both free trials and automatic renewals that allow publishers to provide information about the subscription terms and cancellation procedures after the initial order has been placed. However, furthering a trend begun in California in 2009, legislators in both states included a definition of “clear and conspicuous” similar to the one contained in the California law. After being considered in New York in 2010, this year, both the free trial and automatic renewal bills in Oregon, and the automatic renewal bill passed in Hawaii contain variations of the definition. In addition to prominence requirements, the clear and conspicuous definition requires that the notice be “in close proximity to the request for consent.”

The bills in Oregon take effect January 1st, 2012; Hawaii takes effect July 1st, 2012. Given the consistency of states using the new definition this year, it is highly likely we will see other states attempt to incorporate similar language into bills in the future.