In August, the Insights Association tussled with more state and federal privacy legislation, laws and regulation; considered the implications of COVID-19-related mandates for employers; analyzed pending changes to the pharmaceutical industry’s restrictions on interactions with doctors; and opposed a potential federal tax on companies operating online. We’re also nearing the finish line in our campaign to fix the California law requiring a minimum wage for research subjects.
Consumer Privacy & Data Security
Another addition to the expansive map of comprehensive state privacy legislation appeared in August, the Ohio Personal Privacy Act (OPPA). Modeled on Virginia’s recent law, OPPA would restrict many insights companies and organizations collecting, using and/or selling data from Ohio consumers. Interestingly, it would privilege companies compliant with privacy programs based on the NIST privacy framework.
Out in California, still smarting from the California Consumer Privacy Act (CCPA), the state Attorney General (AG) recently mandated implementation of a global privacy control (GPC) – a universal opt out tool developed by activists – for companies subject to CCPA via a recently-issued FAQ.
The new Ohio bill, along with the creeping CCPA regulatory requirements, justify the Insights Association continued advocacy for comprehensive privacy legislation at the federal level, modeled on the framework put forth by our Privacy for America coalition. While we warily eyed the reintroduced BROWSER Act, comprehensive federal privacy legislation that would demand a primarily opt-in consent regime for access, collection, and disclosure of much research-related data online, IA was pleased that the revived SAFE DATA Act builds on some of the Privacy for America model.
Meanwhile, activist groups are calling for the Federal Trade Commission (FTC) “to protect civil rights and privacy in data-driven commerce” with an aggressive regulatory agenda that would pose serious complications for insights.
Some new federal legislation is more carefully focused on data security for “systematically important critical infrastructure,” which should not impede our industry much.
However, ransomware attacks already do pose a serious threat, like the one that shut down gasoline for much of the southeastern U.S. earlier this summer. The federal government recently provided a one-stop-shop for aiding people and companies in preventing “ransomware attacks that can severely impact business processes and leave organizations without the data they need to operate and deliver mission-critical services.”
In other privacy/security compliance news:
- A new law in Oregon severely restricts the collection, use and sharing of personal health information related to tracking COVID-19 for another purpose, which could limit some insights work.
- A new California law made a small change to the consideration of consent from a minor, which may impact any market research or data analytics involving children.
- IA’s legal intern Can Sarihan, who is fluent in Turkish, analyzed Turkey’s GDPR-like Law on the Protection of Personal Data (LPPD), which applies to controllers and processors that collect data from Turkey; and
- A recent European court decision helped to clarify to which entity in a given European Union member state an insights company may be accountable when trying to process data across borders?
California legislators are discussing a potential bill that would impose on private sector employers a vaccine mandate or regular testing requirements, or both, for their staff. IA postulated a whole bunch of serious complications for employers, particularly small businesses.
Research Subjects = Independent Contractors
California A.B. 1561, legislation that would fix the recent state law requiring prorated hourly minimum wages for California research subjects who receive incentives, recently passed its final hurdle before consideration on the floor of the state senate. A floor vote would be the last stage before the bill is sent to the governor for signature into law
California A.B. 1561, with language proposed and endorsed by the Insights Association, had previously passed the Assembly Appropriations Committee on May 19, 2021, the full Assembly on May 27, and the Senate Labor, Public Employment and Retirement Committee on July 12.
The bill has advanced even as rideshare companies, the impetus for prior legislation tightening the screws on independent contractors, recently had their successful 2020 ballot initiative ruled unconstitutional by a California court.
IA continues to be aided in this advocacy campaign by our A.B. 2257 advocacy working group: MaterialPlus.io, Vital Findings, Quadrant Strategies, Full Circle Research, Branded Research, Precision Sample, MarketVision, Public Opinion Strategies, Dynata, Rybbon, Prodege, Schlesinger Group, Lucid, Nielsen, UserTesting and Forza Insights Group.
Other donors supporting us include: Rare Patient Voice, Olivetree Insights, Fifth Element Associates, Q-Catalytics, Veridata Insights, Clarion Research, Bauman Research & Consulting, WestGroup, Harmon Research Group, Global Market Research Group, Armature Group, Charter Oak Field Services, Information Specialists Group, SurveyHealthcare / InCrowd, Beall Group, FUEL, Voccii, Connected Research and Consulting, and Joe Ottaviani.
Please remember that, to ensure the Insights Association’s best chances of success, we launched a separate round of fundraising and we still need your donations. All donors will be recognized in our updates to the membership, and donors of $2,500 or more will join our A.B. 2257 advocacy working group.
New legislation would shift the financing model for the Universal Service Fund (USF) from taxing telephone users to taxing Big Tech companies. Unfortunately, without clarification and guardrails, the tax envisioned by the FAIR Contributions Act will likely fall on most companies operating online (“edge providers”), including those in the insights industry. The tax would fluctuate quarterly based on bureaucratic whim, and with a mandate malleable enough to grow over time.
Pharmaceutical Marketing Research
In August, IA analyzed a series of updates to one of the pharmaceutical industry’s codes of conduct governing their relationships with doctors, which may be relevant to pharmaceutical market research. The updates take effect January 1, 2022.
Along those lines, legislation advancing in California would require health care practitioners to prominently promote the federal Physician Payments Sunshine Act database to patients, and disclose their own entries. Interestingly, this is the first pharma legislation IA has seen in California since we successfully amended legislation in 2017 that would have otherwise banned respondent incentives for California doctors participating in most pharmaceutical marketing research.
On August 4, the Senate Homeland Security and Governmental Affairs Committee approved the nomination of Robert Santos, the insights industry veteran endorsed by IA, to lead the Census Bureau. He now awaits a vote on the floor of the U.S. Senate.
Meanwhile, a gaggle of legislation that would impact the census and the American Community Survey (ACS) has arisen, including:
- The Census FACTS Act would restrict the conduct of redistricting and require an outside committee to review the work of the Census Bureau and the accuracy of census data;
- The Census IDEA Act would head off the addition of a citizenship question to the decennial census and reduce the Census Bureau’s ability to adapt in a crisis;
- The Common-Sense Census Act would add a citizenship question to the 2030 Census and exclude non-citizens from the count for purposes of apportioning Congressional districts; and
- The LGBTQ Data Inclusion Act would require the collection of voluntary, self-disclosed information on sexual orientation and gender identity in certain government surveys, but potentially disrupt the decennial census and ACS;
Insights Association Membership Fuels Our Advocacy
The Insights Association membership and support underpins our defense and advancement of the insights industry, since IA revenues go to advocacy like we have discussed above, and other ventures that protect and promote the industry.
We are always available to answer your questions on these and other legislative/regulatory/legal issues. As summer ends, we hope you’ve gotten to enjoy a little time off and are revved up for fall.
This information is not intended and should not be construed as or substituted for legal advice. It is provided for informational purposes only. It is advisable to consult with private counsel on the precise scope and interpretation of any laws/regulation/legislation and their impact on your particular business.
NewsGovernment AffairsHoward Fienberg, CAE – The Insights Association