An overview of current legislation proposals impacting the marketing research industry
The Insights Association serves to protect the insights and analytics industry from legislative, judicial and regulatory bodies. It works with national and international associations to improve the quality of market research and data analytics and advocates for the ability to analyze, collect and share data for data analysis and marketing research purposes.
2023 has already seen the introduction of legal changes and new proposals with the potential to impact the marketing research and insights industry. In January, new consumer data privacy laws went into effect in California, Colorado, Connecticut, Utah and Virginia. The Insights Association is open to member feedback to determine how the industry can self-regulate the collection, maintenance and sharing of needed location data as more proposals continue to affect the industry.
Data and privacy security
State privacy legislation
Many state privacy bills being introduced have the potential to affect the industry. The December Fighting for You column covers bills including the Pennsylvania H.B. 2903 which would create “a registry of businesses operating artificial systems” in Pennsylvania; the New York Child Data Privacy and Protection Act, which is an expansion of a recent California law; and the Michigan Consumer Privacy Act, which according to Howard Fienberg, the Insights Associations’ vice president of advocacy, is a “comprehensive state data privacy legislation mostly modeled on Virginia’s law.” Fienberg also mentions the New Jersey Disclosure and Accountability Transparency Act which is a more restrictive comprehensive consumer data privacy and security bill and the Michigan Personal Data Privacy Act, a “comprehensive privacy legislation with similarities to other recent laws, but enforced by private lawsuits as well as the state attorney general.”
In the January Fighting for You column, Fienberg mentions the Insights Association’s debates with various state privacy legislations including the Kentucky Consumer Data Protection Act which is a “comprehensive consumer data privacy legislation modeled on new laws approved in other states the last couple of years, but adding some private litigation and missing protections for audience measurement” and the Oklahoma Computer Data Privacy Act, which focuses on the opt-in option for the sale of data.
The January column also mentioned the New Jersey A. 4919 legislation. According to Fienberg, this legislation would “restrict the creation of goods, services or product features likely to be accessed by anyone under 18 and restrict collection or use of their data, but would mainly target social media platforms.” The Virginia H.B. 1688 and S.B. 1026 would adjust its privacy law to require parental consent for minors and Oregon H.B. 2052 would require certain insights companies to register as data brokers, targeting sample providers specifically.
Federal level legislation and legislation in Congress
The December column covered legislation in congress including the Banning Surveillance Advertising Act, which aims to prohibit targeted advertising with limited exceptions for some first party advertising activity and contextual advertising. According to Fienberg, the Adversarial Platform Prevention Act would “restrict or prohibit a lot of software and mobile apps from countries like China and Russia and restrict software operators and providers from disclosing U.S. consumers’ data to such foreign governments.” Similar to this, the January column mentioned President Joe Biden’s call for “serious federal protections for Americans’ privacy” from Big Tech.
The ACCESS Act would allow the transfer of data from large online platforms to competitors and the SMARTWATCH Data Act would “require express consent for a ‘personal consumer device’ to transfer or sell consumer health information to ‘entities whose primary business function is to collect or analyze consumer information for profit.’”
Treating research subjects as independent contractors
In the November 16 article, the Insights Association asked for clarity for research subject classification. According to Fienberg, the new rules could mistake survey, focus group and other participants as research company employees and urged the U.S. Labor Department to indicate that “research subjects participating in market research are independent contractors, not employees.” The same article states that research subjects want to make an impact and share their opinions and do not do it as a job.
The December column covers three items of legislation revolving around research subjects and their positioning within participation in research. The Employee Rights Act would make it easier to refer to someone as an independent contractor instead of an employee. The Pennsylvania H.B. 2810 would incorporate ABC testing to figure out whether participants are employees or independent contractors. This has the potential to misclassify research subjects as employees when participation incentives are distributed for insights studies. The Worker Flexibility and Choice Act (H.R. 8442) would “create a new hybrid category of worker status, separate from independent contractors and employees, which could potentially benefit research subjects receiving incentives.”
Tax: The New York Senate Bill S1845
The New York S1845 “requires a five percent tax on gross income upon every corporation which derives income from the data individuals of this state share [and]...establishes the New York data fund to distribute the earnings of the five percent to each taxpayer of the state.” Fienberg says the revived legislation would penalize most of the insights industry.
Future changes in the insights industry
The marketing research and insights industry continues to face potential changes as more legislation continues to be proposed on the state and federal levels for data, privacy and research subject classification. While more bills are introduced it is crucial to understand what they mean for businesses and research practices.
The information included in this article 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.