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Under laws that take effect today in Michigan and Utah, it will be illegal to send commercial e-mail for products that minors may not legally own if those youngsters are signed up for the states’ new Child Protection registries.

While the measures, signed into law last year, were intended to shield children from exposure to spam from porn and gambling sites, they will also affect e-mail solicitations for a wide range of other products that kids cannot have access to, including tobacco, alcohol, prescription drugs, and possibly credit cards, hotel rooms and automobiles.

E-mailers who send messages or Web links for these products to the names on the state lists can be liable for a $30,000 fine in Utah, plus $1,000 for each message, and up to three years in jail. Michigan violators may also have to pay $250,000 for each day they are in violation.

And according to laws in both states, those penalties would apply not only to unsolicited e-mail but to also e-mail that recipients or their parents have requested. To be in compliance, Utah and Michigan want e-mailers and e-mail service providers (ESPs) to check their mailing lists against the state registries on a monthly basis. Michigan will charge 3 cents per address; Utah will let its Department of Consumer protection set the fee.

Many e-mailers and ESPs appeared surprised that the registries are going into effect today. But many also maintain that the CAN-SPAM Act of 2003 pre-empts the Michigan and Utah registries, at least as regards solicited e-mail and violate the precepts behind the CAN-SPAM Act of 2003, which bars states from making laws that regulate commercial e-mail.

“CAN-SPAM allowed the states to define different enforcement [of restrictions on commercial e-mail], but it prevented them from imposing their own requirements,” said Dave Lewis, marketing vice president for e-mail technology provider StrongMail. Since the laws are intended to regulate e-mail and the URLs that those e-mails may contain, it’s at least “a very open question” whether they will fall before CAN-SPAM the way individual states’ anti-spam laws did two years ago.

Lewis said that if other states decide to establish similar registries, e-mailers could face an intolerable barrier to communication with legitimate customers.

“Before CAN-SPAM was passed, each of the states was taking its own action against spam,” he said. “We were looking at a patchwork quilt that would have damaged e-mail as a viable communications medium. What’s occurring here sounds to me very much like we’re headed down the same path again. These are two poorly written laws that are intended to essentially regulate e-mail.”

Lewis said the child registries resembled a proposed national “do not e-mail” list that the Federal Trade Commission rejected as ineffective in halting spam back in June 2004. “You already have in CAN-SPAM provisions that address unsubscribe mechanisms and requiring identifying of adult content unless it’s by consent,” he said. “The spammers who don’t respect those provisions are certainly not going to care what the legislators in Utah and Michigan might suggest they do. All those laws will do is make the medium much more difficult for marketers to use for communications and commerce.”

Some industry players suggested that a legal challenge to the Michigan and Utah child registries would not be far off.

“As I read them, these laws are pre-empted by CAN-SPAM,” said Quinn Jalli, director of privacy and ISP relations at Digital Impact, another ESP. “My gut instinct is that some well-funded organization with a vested interest in doing legitimate marketing through e-mail is going to test these laws.” Since the Michigan law gives e-mailers 30 days to stop mailing to names that are added to its new child protection registry, Jalli says he expects that legal challenge to emerge “sometime in the month of July.”

A spokesperson for the Direct Marketing Association said that while the new laws may in fact be pre-empted by CAN-SPAM, “for anyone marketing legal products who might need to be careful about not reaching minors, scrubbing against the [Utah and Michigan child protection] registries makes sense.”