BILL ANALYSIS Ó
SENATE COMMITTEE ON
BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
Senator Jerry Hill, Chair
2015 - 2016 Regular
Bill No: AB 2609 Hearing Date: June 13,
2016
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|Author: |Chau |
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|Version: |May 10, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant|Bill Gage |
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Subject: Advertising: educational conferences
SUMMARY: Requires for-profit educational conference organizations, as
defined, that provide solicitation materials directly to a
school for purposes of distribution to a student, to include
specified disclosures in those materials and to provide the
materials in a sealed envelope addressed to the parent or
guardian of the student and to provide the disclosures on
separate documents addressed to the school and to any employee
thereof who is asked to distribute materials to a student.
Existing law:
1)Pursuant to the federal Family Educational Rights and Privacy
Act (FERPA), protects the privacy of student education records
and specifies that it applies to all schools that receive
funds under an applicable program of the U.S. Department of
Education. FERPA requires that schools, with certain
exceptions, obtain a parent or guardian's written consent
prior to the disclosure of personally identifiable information
from a child's education records. (20 U.S.C. § 1232g; 34 CFR
Part 99)
2)Defines an "educational travel organization" (ETO) as a
person, partnership, corporation, or other entity who offers
educational travel programs for students residing, in the
State of California, and included an educational program as a
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component, and defines a "student traveler" as a person who is
enrolled in K-12 at a time an educational travel program is
arranged with an ETO. (Business and Professions Code (BPC) §
17552)
3) Establishes guidelines for an ETO and requires that a
written contract for educational travel include, among other
things, disclosure of the ETO's name, address, phone number
or other method of 24-hour telecommunications, statement on
whether or not the ETO maintains insurance that covers any
injury sustained by a student traveler, any additional costs
to students, staff qualifications required by the ETO for
staff who will accompany students, and specifies that it is a
violation to make misleading statements or substantial
representations in conducting an educational travel program.
(BPC § 17553 - 17556.5)
4) Pursuant to the Student Online Personal Information
Protection Act (SOPIPA), prohibits an operator of a website,
online service, online application, or mobile application
from knowingly engaging in targeted advertising to students
or their parents or legal guardians, using covered
information to amass a profile about a
K-12 student, selling a student's information, or disclosing
covered information, unless otherwise specified. (BPC §
22584(b))
This bill:
1)Defines an "educational conference" to mean a conference,
forum, camp, or other similar event, intended to develop the
leadership, career or college readiness of a student, or
provide some other form of educational benefit, when
participation in the event is represented as being limited to
students receiving an award, invitation or nomination to
participate in the event.
2)Defines an "educational conference organization" (ECO) to mean
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a person, partnership, corporation, or other entity that
operates in a for-profit manner and that plans and advertises
educational conferences to students residing in California.
3)Defines a "student" to mean a person who is enrolled in
elementary or secondary school, grade kindergarten through
grade 12, at the time an educational conference is arranged
with an ECO.
4)Requires an ECO that provides materials related to an
educational conference directly to a school or employee for
purposes of distribution to a student to comply with all of
the following:
a) Provide materials in a sealed envelope or other
packaging addressed to the parent or legal guardian of the
student.
b) Include with the materials all of the following
disclosures, in clear and conspicuous language:
i) That the materials constitute a solicitation for the
sale of a product.
ii) The legal form of the organization making the
solicitation, including the for-profit status of the
organization.
iii) The legal owner, if any, of the organization making the
solicitation.
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iv) The specific eligibility criteria required for
participation in the solicited educational conference or
conferences, if any.
v) An itemized list of the costs to participate in the
educational conference and the total price of
participating in the educational conference, including
estimated expenses not included in the price of the
educational conference.
vi) That attendance at an educational conference may not
affect a student's chances of being admitted to college,
and that a parent or guardian should contact the
student's school counselor for more information.
vii) Whether or not a nomination from a teacher or school
administrator is required to participate in the
educational conference, or if an individual may be
self-nominated or nominated by a parent or guardian.
viii) The total amount, if any, of funding or other support,
including employment or grants for school supplies, the
organization has provided to the student's school or the
school's employees during the last three years before the
date of the solicitation.
ix) A phone number, email address, or website that a parent
or guardian may use to contact a relevant government
agency for purposes of filing a complaint related to the
solicitation or the educational conference itself.
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1)Requires the ECO to provide the disclosures described above on
separate documents addressed to the school and to any employee
thereof who is asked to distribute materials to a student.
2)Makes legislative findings and declarations pertaining to the
importance of protecting students from false or misleading
advertising, promoting high-quality educational conference
experiences, and encouraging public confidence in youth
leadership conferences by establishing appropriate marketing
restrictions and disclosure requirements on for-profit
educational conference solicitations.
FISCAL
EFFECT: According to the Assembly Committee on Appropriations
analysis dated May 18, 2016, this bill will result in minor,
non-reimbursable local costs due to the creation of a
misdemeanor, offset to some extent by potential fine revenue.
COMMENTS:
1. Purpose. This measure is sponsored by the Author. According
to the Author, this bill is intended to better protect
students from questionable marketing practices for
educational conferences by prohibiting for-profit ECOs from
distributing solicitation materials for educational
conferences directly to students at school, and by requiring
certain disclosures to be included with the solicitation, and
for those materials to be provided to the parent or legal
guardian of the student and to the school and to any employee
who is asked to distribute materials to a student.
Currently, as indicated by Author, some for-profit event
planning companies are using schools and teachers to deliver
marketing materials for expensive conferences directly to
K-12 students, often without their parents' knowledge or
consent.
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As stated by the Author, "By their own description, these
solicitations may appear to be an exclusive 'nomination' to
attend a prestigious youth leadership conference, when in
fact they are simply a sales pitch for a conference that
anyone could attend and can costs hundreds or even thousands
of dollars. These solicitations are addressed directly to
the student rather than to the parent, and are delivered by a
trusted source; the student's teacher.
"These for-profit companies identify potential leads by asking
teachers to "nominate" students, although the criteria can be
vague, subjective or nonexistent. Once delivered,
potentially with some public fanfare at school, "nominated"
students may mistakenly believe that they have won an award
or other competitive honor.
"However, according to a 2009 New York Times article about the
practice, there are no hard and fast criteria for nominators,
and teachers simply use their own discretion when identifying
potential applicants. In some cases, these teachers are also
eligible to request 'grants' to pay for classroom supplies
from the same companies seeking student nominees - although
the teachers themselves may not be aware that the nomination
process is simply a means to generate a sale."
The Author further notes that while these ECOs may provide a
worthwhile enrichment experience for some children who
participate, the misleading and manipulative nature of a
solicitation that appears to be an honor, and the fact that
the pitch is directly and publicly aimed at the student and
communicated through a teacher, raises serious questions of
student privacy and consumer protection. "Young students are
particularly vulnerable to manipulative solicitations that
appear to be a competitive award or honor because of their
perceived value in applying for college, because a respected
teacher delivered the materials or perhaps because the
'nomination' was announced publicly before the student's
peers.
As argued by the Author, current law is not adequate to protect
kids from directly receiving solicitations from for profit
event-planning organizations. California's Student Online
Personal Information Act (SOPIPA) only restricts targeted
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advertising by operators of websites designed and marketed
for K-12 purposes. Similarly, the Federal Educational Rights
and Privacy Act (FERPA) broadly protects the privacy of
student education records, but does not apply to "directory
information," which can include the student's name.
2.Background.
The Educational Conference Industry. Educational conferences go
by a variety of different names: youth leadership camps,
experiential learning programs, and prestige conferences, but
what they all have in common is that they provide school-aged
children who are seeking extra-curricular activities for
personal enrichment, civic engagement or even an advantage
with future college admissions. However, these programs vary
widely from one another in their marketing, admissions
criteria, selection processes, and costs to participate.
Perhaps the most well-known example of an educational conference
provider is the American Legion's Boys and Girls State, which
was founded in 1935 to allow students to study the operation
of local, county and state government by participating in
activities such as legislative sessions or court proceedings
during their annual conferences. Legion Posts select high
school juniors based on recommended guidelines that include
interviews to evaluate merit and ability in order to attend
their program. In most cases, individual expenses are paid
by a sponsoring post, a local business or another
community-based organization.
Rotary International also offers several programs for youth such
as the Rotary Youth Leadership Awards, which is a leadership
development program that hosts events that include
presentations, activities, and workshops that cover a variety
of topics. Participants are nominated by their local Rotary
clubs, which often cover all expenses. Both the American
Legion and Rotary programs are organized as non-profits.
There are also programs offered by for-profit companies, such as
the Junior National Young Leaders Conference, the National
Youth Leadership Forum, or the Global Young Leaders
Conference. These programs solicit their participants
through a "nomination" process that relies on teachers to
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identify potential participants from among their own
students, and can cost hundreds or even thousands of dollars
to participate.
Consumer Protection Concerns about ECOs and their Nomination
Process. According to a New York Times article in April of
2009, "Congratulations! You are Nominated. It's an Honor
(It's a Sales Pitch)", students are receiving conference
solicitations that "looked and sounded more like an Academy
Award than a sales pitch. In fancy script, on weighty card
stock adorned by a giant gold seal . . .[it] promised a
'lifetime advantage' and 'valuable addition' to her resume.
It used words like 'elite,' distinguished,' 'select.'"
Students who receive these offers may be led to believe that
attendance at these conferences is a highly selective honor
because of statements in the solicitation materials that call
nominees "the nation's most highly acclaimed students" and
"most promising young leaders of tomorrow." However,
according to the article, "there are no hard and fast
criteria for nominators. . . .The nomination form asks for
nothing beyond the student's name, address, school year and
sex."
The New York Times cites Jeff Sherrill, an associate director
with the National Association of Secondary School Principals,
who says that in his view, a leadership conference is no more
or less likely to enhance college applications than, say,
soccer camp. "It doesn't fall into the same category as
being selected by your county where there was truly some type
of assessment and selection process. Honors typically don't
come with a price tag," he says.
The article goes on to say that "[l]eadership companies
marketing to teenagers spend handsomely on mailing lists (the
College Board is one source), but the biggest pipeline to
customers is teachers and program alumni. Mailings usually
name the person making the nomination and include a list of
past participants from the student's school."
Eligibility criteria may also be vague, or even non-existent.
For example, the website of one ECO (Envision EMI) suggests
that educators nominate students who "show special academic
promise, aspirations, and leadership potential, can meet the
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challenges of the program's rigorous curriculum, and will be
mature and confident contributors to group and program
activities." However, no quantifiable criteria, such as
grade point average, are provided, and the nomination process
(requiring the student's name and address) can be completed
online. Furthermore, a nominator need not even be the
student's teacher: Envision EMI allows any "teacher, educator
or mentor who is interested in giving students an
experiential learning opportunity outside the classroom is
eligible to nominate." Once a nomination is made, marketing
materials designed to look like award letters will be
delivered to the student's school, addressed directly to the
student, or to the address provided in the nomination.
The cost of for-profit conferences is also raised as an issue.
The Times article describes one program (Envision EMI's
week-long Congressional Youth Leadership Council (CYLC)) that
can costs upwards of $2,200, with airfare and meals not
included, which students are encouraged to pay for through
community fundraising: "Needy students are typically sent a
brochure with fund-raising ideas and success stories of other
students who have tapped friends, family and community to
help pay their way...." In 2006, 1.7% of the revenues for
Envision's CYLC program went to grants and scholarships.
FERPA and Access to Directory Information. Although there are
several federal and state laws in place designed to protect
student privacy, certain exceptions exist that allow a
student's information to be released to outside
organizations. For instance, FERPA permits schools to
disclose "directory information," defined as information that
is generally not considered harmful or an invasion of
privacy if released, without written consent to a third
party, which can include companies that manufacture class
rings or publish yearbooks.
Because ECOs are only accessing directory information when
asking teachers to nominate students, a FERPA violation does
not arise.
3. Arguments in Support. The California Teachers Association
(CTA) is in support of this measure and indicates that
currently, some for-profit event planning companies are
delivering their marketing materials for expensive
conferences directly through public schools. By their own
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description, these solicitations may appear to be an
exclusive nomination to attend a prestigious youth leadership
conference, when in fact they are simply a sales pitch for a
conference that can cost thousands of dollars. These
solicitations are delivered by a trusted source; the
student's teacher.
The CTA argues that teachers must know if the packet they are
asked to pass out to their class constitutes an advertisement
or an award. This measure will require disclosure to the
school and to any employee thereof asked to distribute
materials to the student. It will clear up any confusion for
the teacher about whether the student is receiving a
competitive honor or whether it is in fact a solicitation for
a commercial purpose.
The Common Sense Kids Action (CSKA) is also in support of this
measure and believe that it will protect school-aged children
from directly receiving potentially misleading solicitations
from for-profit companies to attend so-called "prestige
conferences." As argued by CSKA, these solicitations are
sometimes designed to appear to be an exclusive nomination to
attend a prestigious youth leadership conference when in fact
they are simply a sales pitch for a conference that can cost
hundreds or even thousands of dollars. Some of these camps
or conferences may provide a worthwhile enrichment experience
for some children who participate, but regardless, the
misleading and manipulative nature of a solicitation that
makes it appear to be an honor raises serious questions about
student privacy and consumer protection.
NOTE : Double-referral to Senate Committee on Judiciary, second.
SUPPORT AND OPPOSITION:
Support:
California Teachers Association
Common Sense Kids Action
Opposition:
None on file as of June 7, 2016.
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