The insights industry scored important legislative victories in the last month for pharmaceutical MR in Pennsylvania, data security in Utah, and more COVID-19 small business loans and grants at the federal level and in California. At the same time, we’re staring down lots of problematic legislation, including a new comprehensive data privacy law in Virginia and a complex excise tax on data collection in New York. Meanwhile, advocacy continues on issues like: California A.B. 2257; worrisome legislation in Congress that would allow for the unionization of research subjects; limitations on coronavirus-related exposure liability; the census; and restrictions on exit polling.
Pharmaceutical and medical device marketing research
Last year, IA mobilized our grassroots to advocate for an amendment to legislation in Pennsylvania that would have potentially prohibited respondent incentives for physicians participating in pharmaceutical and medical device marketing research, even though incentives are usually only offered by independent marketing research companies and the sponsoring manufacturers are not typically aware of which doctors participated.
This year — bolstered by grassroots contacts made by more than 80 insights professionals in the state — our advocacy bore fruit.
Pennsylvania Rep. Mike Zabel (D-PA-163) reintroduced the Pharmaceutical Manufacturing Prohibited Gifts Act (H.B. 593) with an amendment recommended by the Insights Association that protects bona fide marketing research with health care professionals.
If Zabel’s amended bill should become law, it would join other laws and regulations that IA helped to draft over the years so as to carve out marketing research with health care professionals, including the District of Columbia, Maine, Massachusetts, Minnesota, and New Jersey, as well as the federal Physician Payments Sunshine Act.
Consumer Privacy and Data Security
The Virginia Consumer Data Protection Act (CDPA) was signed into law on March 2. While we were able to prevent the inclusion of a private right of action, the new Act, which emulates parts of CCPA and GDPR, will establish a framework for controlling and processing Virginia consumers’ personal data, applicable to many insights companies and departments. When the law takes effect in 2023, it will clash with CCPA and any other subsequent state privacy laws, making for great challenges for the insights industry.
Meanwhile, the Washington Privacy Act passed the state senate, dueling comprehensive privacy bills in Florida (H.B. 969 and S.B. 1734) have advanced at the committee level, and IA is contending with similarly comprehensive legislation in Alabama, Arizona, Colorado, Connecticut, Florida, Illinois, Kentucky, Massachusetts, Minnesota, Nevada, New Jersey, New York, Oklahoma, Rhode Island, Tennessee, and Vermont.
The new Virginia law emphasizes why IA helped found Privacy for America to pursue a federal comprehensive privacy law and move beyond the expanding patchwork of conflicting state laws.
Comprehensive privacy bills are not the only concern, however:
- California A.B. 964 would prohibit the sale of DMV records for marketing research;
- Texas H.B. 2099 and H.B. 2396 would also prohibit DMV records use for marketing research;
- California A.B. 35 would require disinformation policies for marketing research online communities (MROCs);
- New Hampshire H.B. 597 would restrict government data collection and use; and
- Other bills would drill down on kids’ privacy regulation, like expanding COPPA via the PROTECT Kids Act and restricting the use of video with minors in California A.B. 1545.
Looking more globally, IA welcomed the newly confirmed U.S. Secretary of Commerce, Gina Raimondo, with questions about the status of negotiations with the EU to replace Privacy Shield and what a new deal for trans-Atlantic data transfers might look like.
Finally, providing some good news, Utah signed the IA-endorsed Cybersecurity Affirmative Defense Act (H.B. 80) into law on March 11. It offers an affirmative defense against data security breach litigation if a breached company abides by the right data security standards, such as ISO 27001.
New York recently presented the most novel tax threat so far to the insights industry, with companion bills that would levy an excise tax on the collection of consumer data, regardless of what the collected data is used for (research or otherwise), including cases where the data is only used in providing the data collector’s services to its customers. The methodology of the excise tax would be horribly complicated, as would compliance, with some tax lawyers suggesting that the state tax authority would need to share all the records from its tax rolls for companies to even hope to fulfill their requirements under the law.
A bill supported by the Insights Association in the Golden State became law on February 23, solidifying a grant program for pandemic-addled small businesses in California. And Congress just approved the PPP Extension Act of 2021, a bill supported by the Insights Association that extends the life of the refundable loans from the Paycheck Protection Program (PPP) that have helped many small businesses in the insights industry and their staff persevere despite the COVID-19 crisis.
While Congress won’t provide coronavirus-related liability protections to reopening insights businesses, action is still happening at the state level. IA endorsed H.B. 5125 in Connecticut, and West Virginia just approved its own liability-limiting law.
Research Subjects = Independent Contractors
The Protecting the Right to Organize Act, legislation that would (among many provisions) potentially lead to research subjects who receive respondent incentives to be treated as employees of insights companies (instead of as independent contractors) and thus subject to being organized into a union, passed the House by a 225 – 206 vote on March 9. IA opposes the bill again, but we are trying to convince Congress to carve out research subjects, if possible.
By contrast, IA came out in support of the reintroduced Modern Worker Empowerment Act, legislation that would reduce the patchwork of different tests currently used to define if someone is an employee or independent contractor, by harmonizing the definition of employee for purposes of federal law.
With the complications facing our industry from California A.B. 2257 and its data aggregator provision, the importance of getting out from under convoluted and hard-to-satisfy tests of independent contractor status is higher than ever.
Speaking of which, the Insights Association released a new risk mitigation 1-pager on how the insights industry is dealing with California A.B. 2257, suitable for sharing with your clients and partners.
Meanwhile, we are still negotiating language in Sacramento to improve the law for marketing research relationships with research subjects, aided 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 and Nielsen.
Other donors supporting us have included: 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, and FUEL.
Please remember that, to ensure IA’s best chances of success, we launched a separate round of fundraising that still needs 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.
While the above-mentioned topics have all been top of mind, the Insights Association also continues to be involved in:
- Battles over the census and the Census Bureau, which is trying to change how it approaches data (e.g., trying to function like a modern insights company), spurred by the pandemic;
- Telephone call blocking legislation and proposed restrictions on call centers in New Jersey; and
- Legislation in Louisiana that would require anyone conducting exit polls within six hundred feet of a polling place to register with the secretary of state beforehand.
Your Membership in the Insights Association Matters
The Insights Association is always thankful for your continued membership and support — it underpins our defense and advancement of the insights industry.
We are always available to answer your questions on these and other legislative/regulatory/legal issues. May further prosperity be just around the corner!
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