BILL ANALYSIS
AB 1793
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Date of Hearing: April 27, 2004
ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS,
TOURISM, AND INTERNET MEDIA
Ed Chavez, Chair
AB 1793 (Yee) - As Proposed to be Amended: April 27, 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.
7)Prohibits unfair competition actions against a video game retailer
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brought under Business and Professions Code section 17200 et seq.
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)Reconsideration . This measure was heard on April 13, 2004 and is
being reconsidered today. The author has submitted amendments to
address a primary issued raised at the April 13th hearing
concerning enforcement. The language exempts enforcement of the
bill's provisions against a video game retailer brought under
Business and Professions Code 17200 et seq. With these amendments,
the California Retailers Association has withdrawn its opposition
and is neutral on this measure.
2)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
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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 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."
3)Entertainment Software Rating Board . This is a self-regulatory
body established in 1994 by the Entertainment Software Association,
formerly the Interactive Digital Software Association. 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
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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 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.
4)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.
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5)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 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."
6)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 might be arrested for
gaining admission to an R-rated motion picture. The Entertainment
Software Association, which instituted the ESRB, argues that the
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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.
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
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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 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 . The author's amendments being presented today exempt
this measure from unfair competition suits brought under Business
and Professions Code section 17200 et seq. No penalties for
violation of this measure are specified. However, the law
generally provides two other potential civil remedies which could
be pursued by the attorney general, city or county attorneys,
district attorneys, and/or a party directly aggrieved by a video
game retailer that fails to post the proper signage or comply with
the display requirements of this measure.
a) Injunctive Relief - a civil action could be brought against a
retailer to prohibit the further sale, distribution, or rental
of violent video games.
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b) 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 and
those being presented by the author at today's hearing.
Support
American Academy of Pediatrics
Joe Baca, Member of Congress
Cruz M. Bustamante, Lieutenant Governor
California Alliance Against Domestic Violence
California National Organization for Women
California Probation, Parole and Correctional Association
California Psychiatric Association
California Psychological Association
California State Conference of the National Association for
the Advancement of Colored People
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
Responsible Citizens, Inc.
San Francisco Association for the Education of Young Children
Opposition
American Civil Liberties Union
California Broadcasters Association
California Chamber of Commerce
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
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Video Software Dealers Association
Analysis Prepared by : Kellie Smith / A.,E.,S.,T. & I.M. / (916)
319-3450