Amended  IN  Assembly  April 27, 2022
Amended  IN  Assembly  April 07, 2022
Amended  IN  Assembly  March 28, 2022

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 2571

Introduced by Assembly Members Bauer-Kahan and Gipson
(Coauthor: Assembly Member Gabriel)

February 18, 2022

An act to add Chapter 39 (commencing with Section 22949.80) to Division 8 of the Business and Professions Code, relating to firearms.


LEGISLATIVE COUNSEL'S DIGEST


AB 2571, as amended, Bauer-Kahan. Firearms: advertising to minors.
Existing law generally regulates manufacturers and dealers of firearms. Under existing law, commercial speech or advertising is generally protected under the First Amendment to the Constitution of the United States. Existing laws and regulations, however, restrict the content and placement of advertising and promotional marketing of alcohol, cannabis, and tobacco to protect minors.
This bill would prohibit a person or entity that publishes materials directed to minors in this state in any medium from marketing or advertising firearms in that material, as specified, and would prohibit a person or entity that publishes a marketing or advertising communication from publishing or disseminating marketing or advertising for firearms that is attractive to minors, as specified. firearm industry member, as defined, from advertising or marketing any firearm-related product, as defined, in a manner that is designed, intended, or reasonably appears to be attractive to minors. The bill would also prohibit the use, disclosure, or compilation of a firearm industry member from using, disclosing, or compiling a minor’s personal information if it is intended to market or advertise a firearm to that minor, as specified. The bill would impose a civil penalty of up to $25,000 for each violation of these provisions. provisions, and would authorize a person harmed by a violation to bring suit to recover any damages suffered, as specified. The bill would make each copy or republication of marketing or advertising prohibited by these provisions a separate violation. The bill would declare that its provisions are severable, as specified.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 (a) The Legislature hereby finds and declares that the proliferation of firearms to and among minors poses a threat to the health, safety, and security of all residents of, and visitors to, this state. These weapons are especially dangerous in the hands of minors because current research and scientific evidence shows that minors are more impulsive, more likely to engage in risky and reckless behavior, unduly influenced by peer pressure, motivated more by rewards than costs or negative consequences, less likely to consider the future consequences of their actions and decisions, and less able to control themselves in emotionally arousing situations. In recognition of these facts, the Legislature has already prohibited minors from possessing firearms, except in certain limited circumstances. Nonetheless, firearms manufacturers and retailers continue to market firearms to minors, often identifying particular weapons as starter guns, especially good for children. As reflected in numerous laws regulating marketing of dangerous products to minors, children are especially susceptible to marketing appeals, as well as more prone to impulsive, risky, thrill-seeking, and violent behavior than other age groups. Firearms marketing contributes to the unlawful sale of firearms to minors, as well as the unlawful transfer of firearms to minors by adults who may possess those weapons lawfully. This state has a compelling interest in ensuring that minors do not possess these dangerous weapons and in protecting its citizens, especially minors, from gun violence and from intimidation by persons brandishing these weapons.
(b) It is the intent of the Legislature in enacting this act to further restrict the marketing and advertising of firearms to minors. Nothing in this chapter shall be construed to limit in any way the enforceability of existing law concerning firearms and marketing thereof.

SEC. 2.

 Chapter 39 (commencing with Section 22949.80) is added to Division 8 of the Business and Professions Code, to read:
CHAPTER  39. Marketing Firearms to Minors
22949.80.

(a)A person, firm, corporation, partnership, or other organization publishing material directed to minors in any medium, including, but not limited to, print or broadcast media, internet-based media, or video games, shall not market or advertise in that material any firearm, ammunition, or reloaded ammunition, as referenced in Sections 16150, 16520, 16640, 27505, and 30300 of the Penal Code.

(b)(1) A person, firm, corporation, partnership, or other organization publishing a marketing or advertising communication, or arranging for placement of an advertising or marketing communication, shall not publish or disseminate marketing or advertising for any firearm, ammunition, or reloaded ammunition, as referenced in Sections 16150, 16520, 16640, 27505, and 30300 of the Penal Code, that is attractive to minors.

22949.80.
 (a) (1) A firearm industry member shall not advertise, market, or arrange for placement of an advertising or marketing communication concerning any firearm-related product in a manner that is designed, intended, or reasonably appears to be attractive to minors.
(2) In determining whether marketing or advertising of firearms, ammunition, or reloaded ammunition a firearm-related product is attractive to minors, as described in paragraph (1), a court shall consider the totality of the circumstances, including, but not limited to, whether the marketing or advertising:
(A) Uses caricatures that reasonably appear to be minors or cartoon characters to promote firearms or firearms firearm-related products.
(B) Offers firearm brand name merchandise, such as merchandise for minors, including, but not limited to, hats, t-shirts, or other clothing, or toys, games, or stuffed animals, for minors. that promotes a firearm industry member or firearm-related product.
(C) Offers firearms or firearms accessories with colors firearm-related products in sizes, colors, or designs that are specifically designed to be used by, or appeal to to, minors.
(D) Is part of a marketing or advertising campaign designed with the intent to appeal to minors.
(E) Uses images or depictions of minors in advertising and marketing materials to depict the use of firearm-related products.
(F) Is placed in a publication created for the purpose of reaching an audience that is predominately composed of minors and not intended for a more general audience composed of adults.

(c)

(b) A person, firm, corporation, partnership, or other organization firearm industry member publishing material directed to minors in this state or who has actual knowledge that a minor in this state is using or receiving its material, shall not knowingly use, disclose, compile, or allow a third party to use, disclose, or compile, the personal information of that minor with actual knowledge that the use, disclosure, or compilation is for the purpose of marketing or advertising to that minor any firearm, ammunition, or reloaded ammunition, as referenced in Sections 16150, 16520, 16640, 27505, and 30300 of the Penal Code. firearm-related product.

(d)

(c) As used in this chapter:

(1)“Internet-based media” directed to minors means an internet website, online service, online application, or mobile application, or a portion thereof, that is created for the purpose of reaching an audience that is predominately comprised of minors, and is not intended for a more general audience comprised of adults. An internet website, online service, online application, or mobile application, or a portion thereof, shall not be deemed to be directed to minors solely because it refers to or links to an internet website, online service, online application, or mobile application directed to minors by using information location tools, including a directory, index, reference, pointer, or hypertext link.

(1) “Ammunition” has the same meaning as provided in subdivision (b) of Section 16150 of the Penal Code.
(2) “Firearm” has the same meaning as provided in subdivisions (a) and (b) of Section 16520 of the Penal Code.
(3) “Firearm accessory” means an attachment or device designed or adapted to be inserted into, affixed onto, or used in conjunction with, a firearm which is designed, intended, or functions to alter or enhance the firing capabilities of a firearm, the lethality of the firearm, or a shooter’s ability to hold, carry, or use a firearm.
(4) “Firearm industry member” means any of the following:
(A) A person, firm, corporation, company, partnership, society, joint stock company, or any other entity or association engaged in the manufacture, distribution, importation, marketing, wholesale, or retail sale of firearm-related products.
(B) A person, firm, corporation, company, partnership, society, joint stock company, or any other entity or association formed for the express purpose of promoting, encouraging, or advocating for the purchase, use, or ownership of firearm-related products that does one of the following:
(i) Advertises firearm-related products.
(ii) Advertises events where firearm-related products are sold or used.
(iii) Endorses specific firearm-related products.
(iv) Sponsors or otherwise promotes events at which firearm-related products are sold or used.
(5) “Firearm-related product” means a firearm, ammunition, reloaded ammunition, a firearm precursor part, a firearm component, or a firearm accessory that meets any of the following conditions:
(A) The item is sold, made, or distributed in California.
(B) The item is intended to be sold or distributed in California.
(C) It is reasonably foreseeable that the item would be sold or possessed in California.
(D) Marketing or advertising for the item is directed to residents of California.

(2)

(6) “Marketing or advertising” means, in exchange for monetary compensation, to make a communication to one or more individuals, or to arrange for the dissemination to the public of a communication, about a product or service the primary purpose of which is to encourage recipients of the communication to purchase or use the product or service.

(3)

(7) “Minor” means a natural person under 18 years of age who resides in this state.

(e)

(d) This section shall not be construed to require a person, firm, corporation, partnership, or other organization or authorize a firearm industry member to collect or retain age information about users or subscribers of products or services offered.

(f)

(e) (1) Any person who violates any provision of this chapter shall be liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000) for each violation, which shall be assessed and recovered in a civil action brought in the name of the people of the State of California by the Attorney General or by any district attorney, county counsel, or city attorney in any court of competent jurisdiction. Each copy or republication of marketing or advertising prohibited by this section shall be deemed a separate violation.
(2) The court shall impose a civil penalty under paragraph (1) for each violation of this chapter. In assessing the amount of the civil penalty, the court shall consider any one or more of the relevant circumstances presented by any of the parties to the case, including, but not limited to, the nature and seriousness of the misconduct, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the defendant’s misconduct, and the defendant’s assets, liabilities, and net worth.
(3) A person harmed by a violation of this section may commence a civil action to recover their actual damages.
(4) The court shall also order injunctive relief, including a permanent or temporary injunction, restraining order, or other order against the person or persons responsible for the conduct, as the court deems necessary to prevent the harm described in this section.
(5) Upon a motion, a court shall award reasonable attorney’s fees and costs, including expert witness fees and other litigation expenses, to a plaintiff who is a prevailing party in an action brought pursuant to this section.
(6) Each copy or republication of marketing or advertising prohibited by this section shall be deemed a separate violation.

(g)

(f) The provisions of this section are severable. If any portion, subdivision, paragraph, clause, sentence, phrase, word, or application of this section is for any reason held to be invalid by any court of competent jurisdiction, that decision shall not affect the validity of the remaining portions of this chapter. The Legislature hereby declares that it would have adopted this section and each and every portion, subdivision, paragraph, clause, sentence, phrase, word, and application not declared invalid or unconstitutional without regard to whether any other portion of this section or application thereof would be subsequently declared invalid.