Lobbyist: Amendments Reduced Impact of Utah Legislation

Earlier today, GamePolitics spoke with Dave Davis of the Utah Retail Merchants Association.

Davis argued against the original, Jack Thompson-authored version of HB353 during a committee hearing last week. But amendments subsequently added by sponsor Rep. Mike Morley (left) persuaded Davis to drop his group’s opposition:

We went from adamantly opposed to the bill to a position of neutrality. We still weren’t supporting the bill but we had dropped our opposition based on the fact that [Rep. Morley] had made several favorable amendments for our retailers…


The bill was rolling forward and in its first form, it was completely unacceptable. Rep. Morley and the legislature could have very well – and probably would have – passed it in its original form. What we were able to do was secure some safe harbor exemptions for retailers.

Although Davis didn’t suggest it, GP asked if the practice of age-gating M-rated game content on websites might offer a measure of protection from HB353’s penalties for online retailers:

[Under the amended bill] if a buyer intentionally misrepresents their age, then the retailer wouldn’t be subject to penalty. Keep in mind that this statute only applies to retailers who are advertising that they don’t sell M-rated games or R-rated movies to underage people.


You would have to have a specific [advertisement] that you do not sell the age-restricted product to underage people… Just discussing the [existence of the] rating system would not bring [retailers] under the auspices of "advertising…"


If [a retailer] had an incident with one of their clerks, we’ve now provided a safe harbor where, if they’ve provided some training for that clerk on how to handle those age-restricted products, they would not be liable…

Davis expects the measure to pass its next hurdle, the Utah State Senate.

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  1. 0
    Wolvenmoon says:

    So stop advertising that you don’t sell M-rated games to kids, and do whatever you want. Or make a self checkout lane and don’t moderate it.

    Why the HELL are these legislators wasting taxpayer dollars on this? If what they’d spent in money discussing this bill were put into meaningful education reform, they could be known as something other than a laughing stock.

    For a law, it’s worded horribly and has many loopholes that would make me, as a retailer, RFID games and take them out of glass shelves, and let whoever wanted to buy them. It’d be funny if they just flat out started advertising the games to kids as a middle finger to these assholes.

    However, that-like this law-would not be good for the children either.

  2. 0
    Ryno says:

    I agree. And don’t forget that this is a "Truth in Advertising" bill, not a video game bill. That’s how most of the Utah legislators view it, and I’m sure that’s how most other politicians will too. Heck, they seem to be more focused on the movie theater aspect than on games.

    So aside from Jack yapping to people about his "substantial" video game bill, others won’t likely take any notice of it.

  3. 0
    black manta says:

    I doubt it.  The bill as it is now will have little to no impact.  Somehow depsite all his crowing, I don’t think Jack is very happy about having his bill watered down like this.  And Jack is really the only person who would really take advantage of such a law.  I don’t know of any other lawyers like him who are so hellbent against video games and the entertainment industry and so desperate for attention.  Most sensible lawyers gave up on such efforts a long time ago.  The only reason it passed in Utah is because of its socially conservative politcal makeup and that Jack’s allies in the Utah Eagle Forum had the political muscle to push it through.  I doubt Jack would have as much luck trying something similar anywhere else.  We all saw what happened in Louisiana.

    And since Jack is no longer a lawyer (and despite his assertions, will never be again), there’s nothing he can really do with this law.  It would also mean he’d have to pull up stakes and move to Utah, and somehow I doubt Pat would be willing to go along with that.

  4. 0
    SilverMelee says:

    Once that happens it opens the door to all kinds of other crazy laws.

    I agree. We all remember what happened in New York after their own particular law passed pertaining to parental settings on consoles and whatnot… yes, it was toothless, but sometime after that, we started hearing about some crazy laws coming from that state.

    Need I remind everyone of that one fellow who tried to make it so M-Rated games would have to be locked in a safe?

    — I do more than just play games. I draw, too: http://www.silvermelee.deviantart.com

  5. 0
    vellocet says:

    Unfortunately, I think this bill will pass.  It doesn’t matter that it won’t really do anything.  That’s not the purpose.  The purpose of this bill is to "have it on the books" that video games has been legislated constitutionally.

    Once that happens it opens the door to all kinds of other crazy laws.  It allows Utah and other states to try to pass further reaching laws and waste tax payer money.

    It also allows lawyers like JT to attach ANY retailer who has any kind of prejudice to go after any retailer frivolously.  In fact, so much so that I would challenge the constitutionality of the law.

    For instance, the reason legally enforced age restricting is unconstitutional is that if it were mandatory, it would be less likely that companies would release M rated games.  If that were to happen speech is restricted/censored.  If lawyers bring a multitude of frivolous lawsuits against retailers, retailers will likely just not stock M rated games to avoid being sued.  Just being sued can be a big pain in the ass (with injunctions and whatnot).  Since retailers decide not to stock M rated games, developers stop making them.  Thus we are in the same situation as if age restriction was mandatory.


  6. 0
    NovaBlack says:

    couldnt the act of firing the employee actually be classes as ‘appropriate remedial action’ itself?

    I mean, the employee doesnt work there any longer, so theproblem of him / her selling when not supposed to has been technically solved.

  7. 0
    PushDustIn says:

    Thanks for the people who explained it in the comments.

    However, I don’t think this will affect large chain retailers. When I bought MGS4 (PS3 Combo) / GTA4 at Wal-Mart, a message came up on the computer that reminded the employee to card me. I think the smaller stores are more likely to ‘mess up’ and sell to an underage person (And get in trouble if they advertise that they don’t sell to underage kids).

    On a side note: someone needs to make a sign like the ‘We Card’ signs! 

    I have a question though: what happens if a kid misrepresents his parents; it’s like kids who asked homeless people to buy them rated R movie tickets. That would mean theoretically the homeless person is at fault, since the kid is too young to prosecute, right?



  8. 0
    Mad_Scientist says:

    "I don’t think that any reasonable judge"…

    I agree, the problem is there are some pretty unreasonable judges out there. I don’t know how likely any of these cases really are, but it seems to me that a literal reading of the law would make the retailers culpable in all 3 cases. And thus, I get nervous, as "well, the law may technically do that, but no reasonable person would ever try and use it that way" has been proven to be faulty in the past.

  9. 0
    E. Zachary Knight says:

    Let’s start with your third scenario. That would be the least likely as most stores’ policies are that they do not sell to kids without parent’s permission. If the Bill actually nulls that and any sale to kids even if their parents are right there can result in a lawsuit, then yeah this needs to be killed.

    AS for one and two, I don’t think that any reasonable judge would allow that as part of the prosicution. "Your honor, this store fired the employee that sold the M ratd game to the 7 year old before retraining him. Since the employee did not get that retraining before getting fired, the store is 100% liable under this law."

    So another reason this bill should be shot down.

    E. Zachary Knight
    Oklahoma City Chapter of the ECA

    E. Zachary Knight
    Divine Knight Gaming
    Oklahoma Game Development
    Rusty Outlook
    Random Tower
    My Patreon

  10. 0
    Mad_Scientist says:

    Actually, that’s not the case. I can think of 3 different situations right now where a company would have no easy way to get around things. Unless I am misunderstanding things. To quote from the amendments:

     (A) at the time a good or service labeled with an age restriction or recommendation was provided to a buyer subject to the age restriction or recommendation:
       (I) the person has a documented program to train an employee on the person’s policies against providing the good or service labeled with an age restriction or recommendation to a buyer subject to the age restriction or recommendation;
        (II) the employee who provided the good or service attended the training program described in Subsection (2)(g)(i)(A)(I) within 30 days of commencing duties of selling the good or service; and
        (III) the person took appropriate remedial action, including retraining the employee;


    Let’s say it’s a new employee. What if they decide to simply fire the guy? Maybe even though he’s new, he’s already messed up like this before, or perhaps he’s caused other issues. Except, he’s new, and thus they can’t fire him, not until after they send him to the training program. For that matter, what if the employee simply refuses to attend the program? Oh, they can always decide to fire him… oh wait.

    Second situation, it’s not a new employee, so he’s already attended the training program. But… regarding "appropriate remedial action", they say "including retraining the employee." No "possibly" or "maybe" there. But what if they CAN’T retrain the employee because he quit, or because they don’t want to since they intend to fire him due to poor performance by him?

    Also, the law doesn’t account for parental consent, which could lead to some pretty absurd situations. Kid is in store about to buy Halo 3, store employee says sorry, parent says it’s ok, he’s fine with his kid playing Halo 3 and he’s having the kid buy it because it’s the kid’s own money and the parent wants to give him some experience making transactions in public. Store employee says ok and sells the game. Oops, big mistake. Parent sues store later on. (And if you believe that isn’t likely to happen, just look up some of the stupid lawsuits that have actually occured.)

    This sitatuation at least can be avoided at least, by the stores simply refusing to sell to kids and young teens under ANY circumstances, even if the parent is right there saying it’s ok. Of course, this could lead to complains and customer annoyance, so it’s not exactly a good solution.

    EDIT: Fixed some errors and made things clearer.

  11. 0
    Shadow D. Darkman says:

    Amy, why have you stopped with the playing-his-parent thing? That’s always good for a few 1u1z when Jackie-poo gets his thing going again. 


  12. 0
    Alevan says:

    Sounds like JT’s victory isn’t a victory after all. Even if this bill did pass, it isn’t going to change anything.

    JT fails. Again.

    Amy Levandoski

  13. 0
    Arell says:

    I’m not sure that you’d need to spend much in the way of resources.  You could probably have a judge overturn it, just by hearing the testimony of an ESA intern on his lunch break.

  14. 0
    PushDustIn says:

    So all retailers need to do is to just not say "We don’t sell M rated games to underage kids" and they are of the hook…? 

    It’s like the signs that say ‘We Card’ for tobacco… if they didn’t have these signs, could retailers get off the hook for selling cigarettes to youngins? This is the basic concept of the bill, right? Do I understand this correctly? Why would retailers advertise that they don’t sell rated games/movies to underage kids if it could get them in trouble?  

    http://www.katamaridemocracy.com http://twitter.com/PushDustIn

  15. 0
    Leet Gamer Jargon says:

    [Under the amended bill] if a buyer intentionally misrepresents their age, then the retailer wouldn’t be subject to penalty. Keep in mind that this statute only applies to retailers who are advertising that they don’t sell M-rated games or R-rated movies to underage people.

    Whoa, wait a minute. First the bill said that if a retailer sells a mature game to an underaged buyer and advertised that they don’t, they’d be subject to fraud. Now it says that if the underaged buyer fools the retailer/cashier into giving them the game, the cashier and retailer are exempt (but the cashier might have to be retrained).

    So did this bill go from counterproductive to just plain toothless?


    Game on, brothers and sisters.

  16. 0
    mdo7 says:



    That bill is just crazy and doesn’t make any goddamn sense.  Would anybody like to revise the bill to make it more understandable, if they can’t Just shoot it down.  This bill is just gibberish to me.

  17. 0
    Michael Chandra says:

    So do these legislators consider a poster explaining the ESRB system an advertizement of actually enforcing this system with carding? And would a judge do that?

  18. 0
    Shadow D. Darkman says:

    Would be nice if they saw it our way before they said it was the right thing to do.


  19. 0
    gamadaya says:

    I think this bill would appeal to lots of liberal voters as well. I don’t think it’s target is either liberal or conservative voters, but rather stupid voters who don’t understand that this bill doesn’t even do anything. And it would be a waste of resources to fight the bill. We can let the anti-gaming douchebags think they won something just this once.


    Internet troll > internet paladin

  20. 0
    Arell says:

    Wow.  It’s hard to imagine even bothering to try and pass the bill in its current form, it is completely worthless.  The only value of supporting the bill at this point is to look good in front of conservative voters.

    Still, I think the game industry ought to fight the bill, just out of principle.  Why give the anti-gaming movement a victory, even if it’s a hollow one?

  21. 0
    JDKJ says:

    It would have been nice if Mr. Davis’ discussion of the legislation went beyond merely justifiying the Association’s membership dues by pointing to the results of his lobbying efforts. It’s cool to toot your own horn and all, but . . . .  

  22. 0
    JC says:

    Eh, I seem to be a bit lost on this one. From the previous article everyone was mentioning that the retailers could be liable if they followed the ESRB since it be considered "advertising" that they don’t sell to underage buyers; but this statement says they won’t be held liable unless it is a specific advertisement.

    This bill is not even fit for toilet paper is it…

  23. 0
    sirdarkat says:

     Nope you have the jist… the original bill was going to punish retailers for mentioning the MPAA and ERSB now it just punishes those who have an advertisment from their company offical and what not saying they don’t sale to underage kids and even then they can claim the kid misrepersented their age and therefore they are not held accountable.

    This is what we call a waste of tax payers money and if elected president I would push for a law saying you make a law that has no purpose or a law found unconsitutional with in 2 years of signing then who ever drafted that law and supported it gets to pay the cost of it becoming a law, the cost of enforcing it and the court cost to have it removed.  Personally I think my way would take care of the many BS laws that people like JT push for.

  24. 0
    mdo7 says:


    This picture of Bush holding the phone in a weird way makes me laugh.




    Well you might want to tell that to JT. Oh wait a minute, he doesn’t listen to anyone who opposed him.  Even if he did, he wouldn’t give a rat’s ass about it anyway.  He think evrything a conspiracy theory.  That’s why he not only fail, but this guy should STFU and just let video gamers have it their way.


    I also like to reach out to gamers to stop making flame war on which console is better. Well a true gamer like me would never insult a console no matter how it is, you can make opinion but not bash or something like that.  I keep seeing that flame war a lot.

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