Budget

Federal - The President's proposed budget for Fiscal Year (FY) 2011 includes $162 million for the National Center for Health Statistics (NCHS), a $23 million increase over FY2010, and $1.267 billion for the Census Bureau, a $6 billion cut from FY2010. MRA will continue to work with our coalition allies (the Census Project and Friends of NCHS) to secure necessary funding for these programs.

Physician Incentives

AZ - Sen. Meg Burton-Cahill (D-17) introduced S.B. 1237, which would require pharmaceutical drug manufacturers to publicly report the value, nature, purpose and recipient of "marketing" expenses. The reportable expenses would include "food, entertainment and gifts that are valued at more than $25 and anything provided to a healthcare professional for less than market value." While the reports from manufacturers would likely include individually identifiable information, the public would only see aggregate figures. However, given that "gifts" could be interpreted to include marketing research incentives for healthcare professionals, and pharmaceutical manufacturers avoid conducting research in any state requiring even aggregate reporting, MRA will seek to amend or defeat S.B. 1237.

HI - Sen. Les Ihara (D-9) introduced S.B. 2506, which would make it "unlawful for any manufacturer of a prescribed product or any wholesale distributor of medical devices, or any agent thereof, to offer or give any gift to a healthcare provider." Any gift not banned by the bill would need the value, nature, and purpose, and recipient information to be reported to the director of commerce and consumer affairs - for annual reporting to the public. Gift recipient information to be disclosed would include their name, address, institutional affiliation, and any prescribe products "being marketed." Definitions in S.B. 3506:

  • "Healthcare provider" would mean "a healthcare professional, a hospital, nursing home, pharmacist, health benefit plan administrator, or any other person authorized to dispense or purchase for distribution prescribed products in this state."
  • "Marketing" would mean "promotion, detailing, or any activity that is intended to be used or is used to influence sales or market share or to evaluate the effectiveness of a professional sales force."
  • Among the "allowable," but reportable, expenditures, one possible (but unlikely) category that could be interpreted to exempt marketing research incentives from the ban in S.B. 2506 would be payments for "a research project that constitutes a systematic investigation, is designed to develop or contribute to general knowledge, and reasonably can be considered to be of significant interest or value to scientists or healthcare professionals working in the particular field of inquiry."

Incentives for healthcare providers to participate in marketing research sponsored by pharmaceutical, biologic or medical device manufacturer would likely be outlawed by S.B. 2506 (and even if such incentives could be interpreted as excluded from the ban in the legislation, they would still need to be publicly reported) so this legislation poses a serious threat to research in Hawaii. MRA will endeavor to amend or defeat this legislation to protect survey and opinion research.

IL - Rep. Jack D. Franks (D-63) introduced the "Prescription Drug Ethical Marketing Act" (H.B. 332), which would require every manufacturer and labeler that sells prescription drugs in Illinois to public report "the value, nature, and purpose of any gift, fee, payment, subsidy, or other economic benefit provided in connection with detailing or promotional or other marketing activities by the company, directly or through its pharmaceutical marketers, to any physician, hospital, nursing home, health benefit plan administrator, or any other person in Illinois authorized to prescribe prescription drugs." Payments and gifts of less than $25 would be exempt. Because "marketing activities" would be undefined, and such ambiguities have ensnared marketing research incentive payments in other states, MRA will seek to amend or defeat this Act.

MS - H.B. 437 (discussed in the January Legislative Update) failed in committee. MRA is pleased to have helped defeat this legislation, and hopes next time that the sponsor, Rep. Sherra Hillman Lane (D-86), will be more amenable to appropriately excluding marketing research incentives.

NY - Now that the sponsor of S.B. 3156 (covered in the April 2009 Legislative Update), Sen. Hiram Monserrate (D-13), has been expelled from the State Senate, MRA expects this particular physician incentives legislation to fade from interest.

Privacy

Exit Polling

MN – Sen. Katie Sieben (DFL-57) introduced S.F. 2388 which would amend exiting election law to explicitly allow exit polling at voting places. Under “Persons allowed near polling place,” with “near” meaning “within 100 feet of the building in which a polling place is located,” this legislation would add “an individual who is conducting exit polling.” S.F. 2388 would define “exit polling” as “approaching voters in a predetermined pattern as they leave the polling place after they have voted and asking voters to fill out an anonymous, written questionnaire.” MRA supports and endorses this bill.

MN – Rep. Gene Pelowski (DFL-31A) introduced H.F. 2566, which would amend exiting election law to explicitly allow exit polling at voting places, but only for "a representative of the press."  While MRA appreciates Rep. Pelowski's efforts, we will work with him to ensure that this legislation protects bona fide exit polling conducted by any researcher, not just news media representatives.

Healthcare Privacy

AZ - Sen. Meg Burton-Cahill (D-17) introduced S.B. 1236, which would prohibit a healthcare business from transferring individually identifiable health information outside of the country, unless: (1) the individual is informed at the time of enrollment, re-enrollment, or admission, that their information might be transferred abroad; (2) the healthcare business obtains a consent acknowledgement; (3) the individual may revoke the consent at any time; and (4) the three previous obligations "are undertaken by the business itself and are not delegated to a physician employed by or contracted with the healthcare business." Contractors and sub-contractors would be required to disclose to the healthcare business whether any individually identifiable health information will be transferred outside of the U.S.

Personal Information

NJ - Assembly Member Jack Conners (D-7) introduced A.B. 1941, which would launch a state "do not sell" list and prohibit anyone from selling or causing to be sold "financial or personal information about any resident of this State whose name and address are on the list. "Financial or personal information" would be defined to include (but not be limited to): "information that describes, locates or indexes anything about an individual's real or personal property, holdings, employment, salary, education, financial transactions, purchases of goods and services, medical history, ancestry, religion, political ideology, or criminal or employment record, or that affords a basis for inferring personal characteristics such as finger and voice prints, photographs or things done by or to such individual; and the record of an individual's presence, registration, or membership in an organization or activity, or admission to any institution." A.B. 1941 would negatively impact research organizations that sell such information, particularly sample providers. MRA will seek to amend or defeat A.B. 1941.

Telephone

Autodialers/CATI

KS - The Senate Judiciary Committee introduced the Robo-call Privacy Act (S.B. 456), as requested by the state Attorney General Steve Stix. The Act would prohibit using an automated dialing-announcing device (ADAD) to call a Kansas resident "unless: (1) The subscriber has knowingly or voluntarily requested, consented to, permitted or authorized receipt of the message; or (2) the message is immediately preceded by a live operator who obtains the subscriber's consent before the message is delivered," or the caller and the recipient have an established business relationship. S.B. 456 also requires that when "the message is immediately preceded by a live operator, the operator must, at the outset of the message, disclose: (a) The name of the business, firm, organization, association, partnership or entity on whose behalf the message is being communicated; (b) the purpose of the message; (c) the identity or kinds of goods or services the message is promoting; and (d) if applicable, the fact that the message intends to solicit payment or commitment of funds." Finally, S.B. 456 would set time-of-day limitations for using an ADAD as "before 9:00 a.m. or after 9:00 p.m." local to the recipients' time-zone.

  • S.B. 456 Definitions: "Message" would be defined as "any call, regardless of content," so it definitely would include calls for research purposes. ADAD, as defined in existing law (K.S.A. 50-670), "means any user terminal equipment which: (A) When connected to a telephone line can dial, with or without manual assistance, telephone numbers which have been stored or programmed in the device or are produced or selected by a random or sequential number generator; or (B) when connected to a telephone line can disseminate a recorded message to the telephone number called, either with or without manual assistance."
  • S.B. 456 Impact: This Act would prohibit most automated research calls to Kansas residents (such as IVR) absent express prior consent or being preceded by a live operator. More importantly, because the definition of an ADAD in existing statute includes pretty much every use of automation in making or conducting a research call, from autodialers to CATI, S.B. 456 would require almost all research calls to Kansas residents to disclose, at the beginning of the call, the identity of whoever is sponsoring the research. This would incontrovertibly insert bias into most telephone research and thus cripple scientific results in Kansas. MRA will work to amend or defeat S.B. 456.

Automated Calls

MO - Rep. Bryan Pratt (R-55) introduced H.B. 1652, which would add "automated calls" to the state do not call law. The bill would define "automated call" as "any prerecorded or synthesized voice message resulting from the use of an automatic dialing-announcing device." H.B. 1652 would further define "automatic dialing-announcing device" as "a device that selects and dials telephone numbers and that, working alone or in conjunction with other equipment, disseminates a prerecorded or synthesized voice message to the telephone number called." Among those excluded from these requirements would be automated calls with "prior express invitation or permission" or calls made by "or on behalf of any person or entity with whom a residential subscriber has had a business contact within the past 180 days or a current business or personal relationship." H.B. 1652 would also explicitly exclude political research calls: "From a person or entity requesting the residential subscriber's personal opinion regarding a public policy matter, political candidate, or issue before the voters or which may come before the voters, where the request for an opinion is made for a bona fide information-gathering purpose." Unfortunately, this would still require automated research calls for non-political concerns to abide by the state do not call registry, so MRA will seek to amend or defeat H.B. 1652.

NJ - Sen. Jeff Van Drew (D-1) introduced S.B. 1176, which would prohibit delivering a "recorded message call" to anyone on the state telemarketing do not call list. Since "recorded message call" would be defined as "a telephone call made to deliver a recorded or artificial voice message," it could include automated research calls. Exceptions to the requirement would include emergencies or instances where the caller and the recipient have a current relationship. Though S.B. 1176 would not define "current relationship," the legislation does point out it would "not be deemed to exist based upon a subscriber's political party affiliation." Because S.B. 1176 could severely restrict automated research calls, MRA will seek to amend or defeat this legislation.

NJ - Assembly Member Audrey I. Pheffer (D-23) introduced A.B. 9452, which would increase the penalty to up to $50,000 for any person who violates the exiting provision in state law (New Jersey Statutes 48:17-28 et seq) that a pre-recorded message must disconnect upon the caller hanging up the telephone. The statute applies to all automated calls, including research calls.

WV - Delegate Thomas W. Campbell (D-28) introduced H.B. 2548, which would launch a new state telemarketing do not call registry, but also prohibit using or connecting "to a telephone line an automatic dialing-announcing device unless the subscriber has knowingly requested, consented to, permitted, or authorized receipt of the message or the message is immediately preceded by a live operator who obtains the subscriber's consent before the message is delivered." The bill would define "automatic dialing-announcing device" (ADAD) as "a device that selects and dials telephone numbers and that, working alone or in conjunction with other equipment, disseminates a prerecorded or synthesized voice message to the telephone number called." H.B. 2548 would also limit the time of day ADAD and telemarketing calls could be placed to between 8 a.m. and 9 p.m. (local to the recipient's location). The bill would explicitly exclude research from its definition of telemarketing, excluding calls "by or on behalf of any person whose exclusive purpose is to poll or solicit the expression of ideas, opinions, or votes," unless the call is made with an ADAD. Because this legislation would prohibit most automated research calls, MRA will seek to amend or defeat H.B. 2548.

Caller ID

MS - "The Caller ID Anti-Spoofing Act" (H.B. 872), sponsored by Rep. Angela Cockerham (D-96), passed the House on January 27. S.B. 2513, the Senate companion version sponsored by Nolan Mettetal (R-10), passed the Senate on February 4. The Act would prohibit entering or causing to be entered "false information into a telephone caller identification system with the intent to deceive, defraud or mislead the recipient of a call" or placing "a call knowing that false information was entered into the telephone caller identification system with the intent to deceive, defraud or mislead the recipient of the call." H.B. 872 and S.B. 2513 would exclude from this prohibition the authorized conveyance of a name and telephone number of another person. MRA always recommends a policy of "truth in caller ID" for researchers, so this legislation should have minimal impact on the survey and opinion research profession.

NJ - Sen. Paul A Sarlo (D-36) introduced the "Truth in Caller Identification Act" (S.B. 1335), which would make it "unlawful for any person, in connection with any telecommunications service used within this state, to knowingly cause any caller ID service to transmit misleading or inaccurate caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value." MRA always recommends a policy of "truth in caller ID" for researchers, so this Act should have minimal impact on the survey and opinion research profession.

TN - Rep. Gary W. Moore (D-50) introduced H.B. 2503 and Sen. Joe M. Haynes (D-20) introduced S.B. 2501, companion bills which would prohibit "any person to utilize any ADAD equipment to intentionally… Conceal or misrepresent the telephone number utilized by the ADAD equipment on the call recipient's telephone or other equipment that is technically capable of displaying the number by: (1) Displaying a telephone number other than the telephone number utilized by the ADAD equipment; (2) Not displaying the telephone number utilized by the ADAD equipment; or (3) Displaying an "unknown number" message or similar message instead of the telephone number utilized by the ADAD equipment." MRA always recommends a policy of "truth in caller ID" for researchers, so H.B. 2503 and S.B. 2501 should have minimal impact on the survey and opinion research profession.

VA - Delegate Kenneth Cooper Alexander (D-89) introduced H.B. 215, which would make it "unlawful for any candidate or candidate campaign committee [or person or political committee] making campaign telephone calls to falsify or disguise caller identification information transmitted to the recipient of any campaign telephone call. If the caller identification information includes a name associated with the telephone number, the caller identification information shall include the name of the candidate or candidate campaign that has authorized and is paying for the calls." A "campaign telephone call" is defined in Virginia law as "a series of paid telephone calls made to 25 or more telephone numbers in the state during the 180 days before a general or special election, or during the 90 days before a primary, which convey or solicit information about any candidate or political party participating in the election or primary." Virginia statute already requires full disclosure of who paid for such calls before the conclusion of the call. This definition includes research calls. Displaying the sponsor's name on caller ID could bias results of surveys conducted by independent third party researchers, but it is unclear if this bill would apply to calls made on behalf of, rather than by, the political entities. MRA will seek greater clarity - and amend or defeat H.B. 215 if necessary.

Political Calls

AL - Sen. Ted D. Little (D-27) introduced S.B. 343, which would add "paid campaign telephone callings" to the existing regime for political advertising, requiring up-front disclosure of sponsorship. Since S.B. 343 defines "campaign telephone calling" as "a telephone call made for consideration for the purpose of influencing the vote of the recipient of the call," this legislation should have minimal impact on survey and opinion research.

HI - Sen. Colleen Hanabusa (D-21) introduced S.B.2252 and Rep. Calvin K.Y. Say (D-20) introduced H.B. 2004, companion bills that would add automated calls to the regulation of political campaign expenditures. The bills would define "automated political call" as "(1) any outbound telephone call or electronic voice message; (2) the telephone call plays a recorded message; and (3) (A) the recorded message advocates, supports, or opposes the nomination or election of a candidate; or (B) Advocates, supports or opposes a question or issue certified to be on the ballot in the next election." H.B. 2004 and S.B. 2252 should have minimal impact on the research profession.

IL - Sen. Dale A. Righter (R-55) introduced S.B. 3135, which would make "electioneering autodialer telephone calls" subject to the state do not call law, prohibiting such calls to "subscribers who have registered their telephone number or numbers" on the state registry. S.B. 3135 would define "electioneering autodialer telephone call" as "any voice communication over a telephone line, through the use of an autodialer or autodialer system, that refers to a clearly identified political candidate, political party, or question of public policy and is an appeal to vote for or against a clearly identified candidate, political party, or question of public policy." The legislation would "not apply to other telephone calls made by an autodialer and placed on behalf of a political organization." Because of the limited definition, S.B. 3135 would have minimal impact on the research profession.

NJ - Assembly Member David W. Wolfe (R-10) introduced A.B. 1305, which would add "polling done by or on behalf of a candidate for public office or a political organization" to the state's definition of "telemarketing," making many political polling calls subject to the state do not call registry and other telemarketing restrictions. MRA will seek to amend or defeat A.B. 1305 to protect political research.

NJ - Sen. Andrew R Ciesla (R-10) introduced S.B. 647, which would add telephone polling "done by or on behalf of a candidate for public office or a political organization" to the state's definition of "telemarketing" and make such calls subject to the state do not call registry. Such calls made to recipients with whom the pollster has an existing business relationship or with express prior consent would be exempt from the registry. S.B. 647 would require all such polling calls (regardless of consent or relationship) to abide by the time of day calling limitation of 8 a.m.-9 p.m. and require the pollster to identify himself, "the person on whose behalf the call is being made, and the purpose of the call ... within the first 30 seconds of the call." Finally, S.B. 647 would forbid such calls (regardless or consent or relationship) to any "commercial mobile service device" (e.g., cellular phone or blackberry). S.B. 647 would constitute a severe threat to political polling in New Jersey, so MRA will seek to amend or defeat this legislation.

Telemarketing/Sales/Non-Research Activities

Door-to-Door

DE - Rep. Bryon H. Short (D-7) introduced H.B. 317, which would require "Any seller who solicits a door-to-door sale" to "prominently display a door-to-door salesperson identification card obtained from the Department of Finance while soliciting a door-to-door sale." The bill would also limit door-to-door sales to between the hours of 9 a.m. and 7 p.m. H.B. 317 would only impact salesmen, and should have minimal impact on survey and opinion researchers (e.g., those conducting a Census).

Faxes

MS - H.B. 292 (discussed in the January Legislative Update) died in committee.

Mail

Congress - Rep. Carolyn Maloney (D-NY-14) introduced the "Prevent Deceptive Census Look Alike Mailings Act" (H.R. 4621), which would require the use of the word "Census" on the outside of envelopes, or an outside cover or wrapper, of any mailings "soliciting purchase of a product or service" or fundraising, to include "an accurate return address including the name of the entity that sent such matter." MRA supports H.R. 4621, which comes in response to political fundraising letters that could have been confused with official correspondence regarding the 2010 Census.

Spam

NJ - Assemblyman Gordon M. Johnson (D-37) introduced the "New Jersey Spam Deterrence Act" (A.B. 1922), which would prohibit purposely or knowingly (1) using "a protected computer of another to relay or retransmit multiple commercial electronic mail messages with the intent to deceive or mislead recipients or an electronic mail service provider as to the origin of the message;" (2) materially falsifying "header information in multiple commercial electronic mail messages and intentionally" initiating "the transmission of such messages;" (3) registering, "using information that materially falsifies the identity of the actual registrant, for 15 or more electronic mail accounts or online user accounts or two or more domain names and intentionally" initiating "the transmission of multiple commercial electronic mail messages from one or any combination of accounts or domain names;" or (4) falsely representing "the right to use five or more Internet protocol addresses and intentionally" initiating "the transmission of multiple commercial electronic mail messages from the Internet protocol addresses." Since A.B. 1922 would define a "commercial electronic mail message" as "an electronic message sent primarily for the purpose of commercial advertisement or promotion," this bill should have minimal impact on the research profession.

Telemarketing

CT - Sen. Sam S.F. Caligiuri (R-16), the Senate Deputy Majority Leader, introduced S.B. 69, which would harmonize the penalties for "willful violations of the state no sales solicitation call statute" with the federal Do Not Call law. Since both laws relate to telemarketing/sales calls, this legislation would have minimal impact on the research profession.

NJ - Assembly Member Matthew Milam (D-1) introduced A.B. 842, which would establish a publicly-available directory of registered telemarketers, containing their names and addresses and any other information the Division of Consumer Affairs would deem appropriate. This bill would have minimal impact on the research profession.

WV - Delegate Joe Talbott (D-36) introduced H.B. 2290, which would launch a state telemarketing do not call registry. This bill would have minimal impact on the research profession.

WY - Sen. Curt Meier (R-3) introduced S.F. 57, which would prohibit telemarketers from "willfully" making or causing to be made "any unsolicited telephonic sales call to any unpublished cellular telephone number." S.F. 57 would define "unpublished cellular telephone number" as a cell phone number "That has not been requested by the subscriber to be published in any telephone directory or any list of telephone service subscribers" and "Whose prefix has been determined by the Wyoming public service commission to be primarily for cellular telephone service." Since S.F. 57 only affects telemarketing, it should have minimal impact on the research profession.

Text Messaging

MS - H.B. 16 (discussed in the January Legislative Update) died in committee.

NJ - Assembly Member Paul D Moriarty (D-4) introduced A.B. 633, which would prohibit, absent "prior express permission," sending "an unsolicited advertisement by means of text messaging to a communication device capable of receiving text messaging if the recipient of the message will incur a telecommunications charge or a usage allocation deduction as a result of the message being sent." Since the legislation explicitly targets advertising messages, the bill should have minimal impact on the research profession.