The bill, drafted with the help of renowned anti-game activist Jack Thompson, would amend Utah's "Truth in Advertising Act" to cover "a good or service labeled with an age restriction or recommendation," such as movies and video games.

Opponents of the bill argue it actually discourages retailers from establishing such a policy in the first place, as stores are not penalized if they don't have or drop a policy that restricts the sale of explicit content.

The ESRB claims that a recent audit of Utah video games stores found that minors trying to buy mature games were turned away 94% of the time.

"It would effectively penalize responsible retailers that have policies, and provide safe harbor for retailers that refuse to adopt a responsible policy in the first place," wrote Vance. "That is downright senseless. If the goal is to make sure our children are playing age-appropriate games, there is a better way."

The bill has also drawn the opposition of the Entertainment Software Association, with senior communications director Dan Hewitt describing it to The Escapist as "a solution in search of a problem." He added that it's "a step back" as "the perverse effect of this bill is that Utah retailers will stop promoting the ESRB rating system."

Having already cleared the Utah House of Representatives, the bill is now in the hands of the State Senate. If passed, governor Jon M. Huntsman Jr. will then decide whether or not to sign it into law, which would take effect on January 1, 2010.

The complete text of Vance's letter follows below:

An Open Letter to Utah's Parents and Leaders
March 6, 2009

As you read this, Utah legislators are preparing to pass legislation that risks, perhaps unintentionally, putting an end to hugely successful efforts to prevent children's access to video games intended for older audiences. I write today in the hopes of averting this grave mistake, and to propose a more responsible course of action instead.

Legislation expanding Utah's existing Truth in Advertising law (H.B. 353) would require that if a video game retailer promotes its adherence to a policy restricting the sale of video games rated M for Mature - which, like the R rating for movies, indicates it is recommended for those ages 17 and older - and then sells an M-rated game to anyone under the recommended age, they could be subject to a lawsuit, fines and/or the payment of additional costs and legal fees. In fact, all major retailers of video games currently have such policies, which they have put in place voluntarily and with which they are in compliance the vast majority of the time. According to a recent audit, Utah video game retailers enforce their store policies regarding the sale of M-rated games an impressive 94% of the time - without any laws or requirements that they do so. That level of compliance took many years to achieve, and peaks to the strong commitment of video game retailers to do the right thing.

So why is this bill likely to put an end to those very efforts it seeks to support? On its face such an amendment makes good sense; after all, if a retailer says they're going to do something, they should do it, right? While the intent of this legislation would be to hold retailers accountable for compliance with their stated policies - presumably in that negligible 6% of instances where they fail to comply - the unfortunate reality is that it would introduce a liability that will likely force many retailers to seriously consider abandoning their voluntary policies and ratings education programs, undoing years of progress made on behalf of parents and their children.

It's worth noting that when the Federal Trade Commission first began measuring retailer compliance with video game sales policies nationwide in 2000, a scant 15% of underage customers were turned away. However, the most recent such study reported in May 2008 found that national retailers refused to sell M-rated games to customers under 17 a remarkable 80% of the time, far surpassing the comparable rates of compliance for movies, DVDs, or music CDs rated for a mature audience. The unraveling of this substantial progress would be a tragic consequence, depriving parents of the assurance and control they currently have with respect to deciding which games their children can purchase and play.

Utah State Representative Michael Morley, the chief sponsor of this new amendment, was recently quoted in the Deseret News stating that, "if they're one of those places that thinks, 'Well, as long as they have a heartbeat and some money we'll sell to them,' then this won't have any impact on them." That statement reveals exactly why this law would be so destructive. It would effectively penalize responsible retailers that have policies, and provide safe harbor for retailers that refuse to adopt a responsible policy in the first place. That is downright senseless. If the goal is to make sure our children are playing age-appropriate games, there is a better way.

The Entertainment Software Rating Board (ESRB), of which I am president, is a non- profit organization created in 1994 to help parents determine which computer and video games are appropriate for their children. Most retailers only carry games that have been rated by the ESRB, and game consoles and handheld devices include settings that parents can activate to block games by ESRB rating. Elected officials across the country, including Utah Attorney General Mark Shurtleff, and groups like PTA have joined ESRB in helping educate the public about the rating system to great effect. The FTC recently reported that 73% of parents regularly use ESRB ratings when buying games for their children; 59% "never" allow their child to play an M-rated game, and 34% only do so "sometimes."

The bottom line is that parents are more than capable of utilizing tools like the ratings to make the right choices for their families. And there is broad support of ESRB ratings from major retailers and the game industry alike. The proposed legislation is looking to fix a system that is not broken. Instead, we should all be focused on figuring out ways to encourage parents to use the excellent tools already available to them to make informed choices about the media their children consume. Punishing retailers for promoting responsible sales policies is irrational and counter-productive. I write in the sincere hope that Utah chooses to empower its parents with information rather than undo the substantial progress made by retailers to date to serve the best interests of Utah's children.

With warm regards,
Patricia E. Vance
President