BILL ANALYSIS
AB 1793
Page 1
Date of Hearing: April 13, 2004
ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS, TOURISM, AND
INTERNET MEDIA
Ed Chavez, Chair
AB 1793 (Yee) - As Amended: April 12, 2004
SUBJECT : Video games: ratings
SUMMARY : Requires video game retailers to separately display
specified video games and post signs disclosing information
regarding the rating of video games by the Entertainment
Software Ratings Board (ESRB). Specifically, this bill :
1)Defines "video game retailer" as a person who distributes
video games to the public.
2)Defines "video game" as an object or device that allows a
person to create an interactive game through technology.
3)Requires video game retailers who sell video games to:
a) Display games rated "Mature" by the ESRB on separate
shelves.
b) Place all video games rated as "Adults Only" and all
related advertising in a separate area labeled "adults
only."
4)Requires sellers and distributors of video games rated "Adults
Only" to inform purchasers that all video games rated "Adults
Only" and related advertising must be displayed in a separate
area labeled "adults only."
5)Exempts public libraries from the restrictions on the display
and advertising of video games rated "Adults only."
6)Requires video game retailers to post a sign explaining the
ESRB ratings system, which would be required to include:
a) ESRB ratings symbols indicating the suitable age group
for a video game; and
b) ESRB content descriptors indicating elements of the
game's content that are of potential interest or concern.
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EXISTING LAW :
1)Requires video arcades to post a sign to notify consumers of
the existence of a video game rating system to aid in the
selection of games, and to make available a brochure that
explains the rating system.
2)Prohibits the sale, lease, rental, or provision of any video
game, that is intended primarily for use by minors which
includes paid commercial advertisements, brand names,
trademarks, or copyrighted slogans of alcoholic beverages or
tobacco products in the content, packaging, or advertising of
the video game.
FISCAL EFFECT : None. This bill is not keyed fiscal.
COMMENTS :
1)Author's Statement . According to the author, "the purpose of
this bill is to better educate consumers about video game
content, as well as prevent the marketing of inappropriate
video games to children. This bill will require video game
retailers to display video games with mature content in a
manner consistent with the industry's own advisories."
"A member of my staff took her 8-year-old son to buy a video
game. In an attempt to buy a game appropriate for his age
level, they searched through the display of video games,
checking for ratings. Rating symbols and content descriptors
are on the boxes of games, but the store provided no
additional information explaining the meaning of the symbols
or defining the descriptors. There was simply no way of
gathering enough information to decide which games were
appropriate for her child."
"Additionally, she found that video games of all ratings are
mixed together on the shelves. An educational game rated 'E'
for 'Everyone' is displayed next to 'M'-rated games intended
for adults. These 'Mature'-rated games can be sexual in
nature, and are filled with bloody violence. All games were
easily visually accessible and all are packaged to advertise
to the consumer, even if the consumer is 8 years old. In
addition to not being informed about the content of the games,
she had to divert his attention away from violent and sexual
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images on the front covers of those being marketed to adults."
"In September 2000, the Federal Trade Commission issued a report
requested by the President and Congress entitled, 'Marketing
Violent Entertainment to Children.' That report found
widespread marketing of violent video games to children that
was inconsistent with the cautionary messages of their own
advisories. In the June 2002 follow-up report, the Commission
continues to encourage retailers to adopt or enforce policies
to discourage the sale of Mature-rated games to children."
"Last month, the Federal Trade Commission released its 2003
"mystery shopper" study. The results showed that only 27% of
video game retailers provided information about ratings or
ratings enforcement. This bill would require retailers to
clearly post signage explaining the ESRB system of rating
games, including the ESRB symbols indicating the suitable age
group and ESRB content descriptors indicating elements of the
game's content that are of potential interest or concern."
2)Entertainment Software Rating Board (ESRB) . This is a
self-regulatory body established in 1994 by the Entertainment
Software Association, formerly the Interactive Digital
Software Association (IDSA). The ESRB independently applies
and enforces ratings, advertising guidelines, and online
privacy principles adopted by the computer and video game
industry. To date, the ESRB has rated more than 10,000 titles
submitted by over 350 publishers.
The "ratings have two parts: rating symbols that suggest what
age group the game is best for, and content descriptors that
indicate elements in a game that may have triggered a
particular rating and/or may be of interest or concern" such
as blood, use of alcohol, animated blood, strong language,
mild violence and intense violence. There are approximately
31 content descriptors in use by the ESRB. The 6 ratings used
by the ESRB are:
EC - "Early Childhood" have content that may be suitable
for persons ages 3 and older. Titles in this category
contain no material that parents would find inappropriate.
1% of all games rated by the ESRB in 2003 received an EC
for Early Childhood ratings.
E - "Everyone" have content that may be suitable for
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persons ages 6 and older. Titles in this category may
contain minimal violence, some comic mischief and/or mild
language. 57 percent of all games rated by the ESRB in
2003 received an E.
T - "Teen" have content that may be suitable for persons
ages 13 and older. Titles in this category may contain
violent content, mild or strong language, and/or suggestive
themes. 32% of all games rated by the ESRB in 2003
received a T for Teen rating
M - "Mature" have content that may be suitable for persons
ages 17 and older. Titles in this category may contain
mature sexual themes, more intense violence and/or strong
language. 10% of all games rated by the ESRB in 2003
received an M for Mature rating
AO - "Adults Only" have content suitable only for adults.
Titles in this category may include graphic depictions of
sex and/or violence. Adults Only products are not intended
for persons under the age of 18
RP - "Rating Pending" have been submitted to the ESRB and
are awaiting final rating.
3)Marketplace . Opponents to this measure argue that it is
unnecessary because the marketplace naturally limits access of
games to minors - 92 percent of video games are purchased by
adults; for computer-based games, 97 percent are purchased by
adults. Additionally, the industry reports that it has
voluntarily instituted its own regulatory system the
components of which largely mimic the requirements of this
legislation. Although in its infancy, the Interactive
Entertainment Merchants Association reports that by December
2004, 90 percent of the retail industry has committed to
posting the ESRB rating system in stores and prohibiting the
sale of "Mature" games to children under the age of 18. For
video game rentals, most video game rental stores currently
require parental approval for the rental of games rated
"Mature" to minors, and a majority do not allow them to be
previewed in their stores.
4)Compelled Speech . Mandates on commercial establishments to
post signs or control the display of products, as this measure
does, may be compelled speech under the First Amendment. On
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this basis, representatives of video game retailers and
developers and manufacturers argue that "segregating certain
products according to the ESRB rating convey speech of the
government rather than that of the video retailer. Such
compelled speech presents two distinct content-related
dangers. It forces the speaker either to appear to agree with
the compelled message or respond to it, and it can 'chill'
speech by creating an incentive for the speaker to alter his
speech (or not speak at all) in order to avoid the compelled
message."
If challenged in court on this basis, the State of California
would be required to prove that it had a substantial
government interest in regulating violent video games. Based
on prior constitutional challenges to statutes and ordinances
in other states regulating the marketplace and the commercial
distribution of violent video games the state could not likely
meet this burden. The state would have to "demonstrate that
the recited harms [of violent video games] are real, not
merely conjectural, and that the regulation will in fact
alleviate these harms in a direct and material way." Based on
the studies submitted to the committee, the state could not
meet this test because the research currently available does
not show the causal harm between violent video game play and
violent acts. Neither the author nor proponents were able to
produce any research that will meet this standard established
by the federal courts.
In the most recent holding of the Eighth Circuit on this issue
the court opined that "?playing violent video games 'does in
fact lead to aggressive behavior in the immediate
situation?that more aggressive thoughts are reported and there
is frequently more aggressive behavior.' But this vague
generality falls far short of a showing that video games are
psychologically deleterious."
5)Film Rating System . The ESRB ratings system is similar in its
structure and operation to the ratings system developed by the
Motion Picture Association of America (MPAA) more than thirty
years ago and has now become a mainstay of the theater-going
marketplace. Although completely voluntary in its structure,
adoption, and implementation, it has become so ingrained in
American culture that many children grew up thinking that they
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might be arrested for gaining admission to an R-rated motion
picture. The Entertainment Software Association, which
instituted the ESRB, argues that the ESRB is in its infancy
but is also on its way to becoming a mainstay in the video
game retail arena.
Although the MPAA system is strictly voluntary, after its
introduction into the marketplace there were attempts by
governmental entities to convert it into a regulatory mandate.
According to the Entertainment Software Association, "courts
throughout the country have invalidated the incorporation of
MPAA ratings in a variety of statutory contexts." Statutes
overturned by the courts included one which prohibited minors
from viewing "R" and "X" rated films and one which penalized
exhibitors who showed films and previews that were "not
suitable" for children.
Opponents to this measure argue that mandating the use of the
ESRB system in the marketplace, thus "converting a voluntary
system into a regulatory mandate" would also fail on
constitutional grounds. However, this legislature adopted a
mandate on video game arcades two years ago that requires the
posting of signs regarding a ratings system. There is no
indication that the mandate has been tested in the courts.
The posting requirements for video game arcades remain in
place.
6)Compliance By Retailers . In its opposition to this measure,
the California Retailers Association opines that it is
unworkable and would impose subsequent liability for actions
beyond the control of retailers. "Mandating segregation of
store products by type never works in practicality, because
customers will pick up an item to look at it and put it back
down, not necessarily in the same spot?.If a customer picks up
an M-rated game, selects other merchandize, goes to the
checkout counter, decides against the game, and sets it
anywhere else in the checkout area, this would be a
violation."
The Video Software Dealers Association argues that segregating
the games is unnecessary since the industry regulates itself
with "industry-adopted guidelines that prohibit game
publishers from depicting scenes of excessive or graphic
violence on game boxes."
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7)Video Game Arcades v. Sellers v. Renters . Adoption of this
measure would create inconsistencies in the law between video
game arcades and video game sellers and video game rental
establishments, regarding violent video games.
Two years ago, the legislature mandated that video arcades
display a sign that encourages the use of a video arcade game
rating system (no system named), created by the video arcade
gaming industry, when selecting a game. In addition, the
facility must make a brochure available upon request to
consumers to explain the rating system. This measure names a
specific system for establishments that sell games and
requires extensive detail in the sign requirements.
Additionally, no brochures for customers are required. This
measure does not apply at all to establishments that rent
games. As a result of this measure, arcades would have to
post signs with minimal detail and provide brochures; sellers
would be required to post very detailed signs but provide no
brochure; video game retailers that only rent games would have
no legal requirements.
8)Signage . The posting requirements for video game retailers
required by this measure are not clear and are inconsistent
with those required of video game arcades which must merely
include a generic announcement that a video game ratings
system is available. The sign must be posted in a prominent
place "such as the arcade entrance, the money exchange
machine, or the token counter. The lettering of each sign
shall be printed, at a minimum, in 36-point type and shall be
in black ink against a light colored background, with
dimensions no less than 18 by 24 inches."
By contrast, this measure requires the retailer to "post a sign
in a conspicuous place" with no direction on size or color.
The content required is that it indicate the "suitable age
group for a video game." This phrase could be interpreted as
requiring a separate sign for each rated game. Does the
author intend this or for there to be one sign in each retail
establishment that includes all ratings symbols in use for all
games?
Also required is the posting of content descriptors that are of
"potential interest or concern." This is a subjective
requirement. The video game retailer has no way of knowing
which of the 31 content descriptors currently used by the ESRB
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are of interest or concern to any given party at any given
time. Additionally, because the ESRB system is
industry-controlled, the content descriptors could be modified
or supplemented without a retailer's knowledge. At that point
would the retailer be out of compliance with the law because
the content descriptors posted would not reflect those in use
by the ESRB?
The volume of information required for the signage is also
lengthy. The ESRB currently uses 6 ratings and 31 content
descriptors. Video game arcades are required to provide
customers with a brochure, upon request, that explains the
basis for the ratings system used by arcades but are not
required to post its structure.
9)Enforcement . No penalties for violation of this measure are
specified. However, the law generally provides three
potential civil remedies which could be pursued by the
attorney general, city or county attorneys, district
attorneys, and in some instances, private parties against an
entity or individual who sells, distributes, or exhibits
violent video games to a minor.
a) Unfair Competition - The sale, distribution or
exhibition of a violent video game by a retailer could be
met with a suit for unfair competition, since the sale,
distribution, or exhibition of a violent video game to a
minor could be construed as an unfair business act.
Damages could include a civil penalty of $2,500 for each
violation, an injunction, or general tort damages under
Business and Professions Code Section 17200 et seq.
b) Injunctive Relief - a civil action could be brought
against a retailer to prohibit the further sale,
distribution, or rental of violent video games.
c) Negligence - Violation of state laws can be the basis
for tort actions for negligence.
13)Re-referral . Should this measure be adopted, the Rules
committee has requested it be re-referred to the Rules
Committee.
REGISTERED SUPPORT / OPPOSITION :
All correspondence received prior to April 12, 2004 amendments.
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Support
Joe Baca, Member of Congress
Cruz M. Bustamante, Lieutenant Governor
California National Organization for Women
California Probation, Parole and Correctional Association
California Psychiatric Association
California Psychological Association
California State PTA
Citizens for Responsible Media
Coalition to Stop Commercial Exploitation of Children
Dads and Daughters
Friends Committee on Legislation of California
Girl Scouts of Tierra Del Oro
Mid-Peninsula Boys & Girls Club
San Francisco Association for the Education of Young Children
Opposition
American Civil Liberties Union
California Broadcasters Association
California Chamber of Commerce
California Retailers Association
Entertainment Software Association
Interactive Entertainment Merchants Association
International Game Developers Association
The Media Coalition
Motion Picture Association of America, Inc.
Recording Industry Association of America
Rite-Aid
Video Software Dealers Association
Analysis Prepared by : Kellie Smith / A.,E.,S.,T. & I.M. /
(916) 319-3450