September 13, 2005

The Honorable Arnold Schwarzenegger
Governor of California
State Capitol
Sacramento CA 95814

Re: Veto Request for A.B. 1179 (Yee)

Dear Governor Schwarzenegger,

The Interactive Entertainment Merchants Association (IEMA) is the non-profit trade organization representing the leading retailers of computer and video game products in the United States. IEMA member companies collectively account for almost 75% of the $10 billion annual games business in the U.S. The IEMA, and the retailers we represent in the State of California, respectfully urge you to veto A.B. 1179.

IEMA members take the issue of retailer enforcement of policies inhibiting the sale or rental of "Mature" rated games to minors very seriously; however, we do not believe that legislation is the answer. The IEMA believes that A.B. 1179 is unnecessary, as retailers are firmly committed to voluntarily enforcing and promoting the video game rating system. Second, legislation cannot and will not replace the ultimate role and responsibility of parents in their duty to raise their children, and this bill usurps the rights of parents by restricting minors' access to certain games, even if parents have approved them for their child. Further, federal courts have consistently recognized that video games are constitutionally protected speech under the First Amendment to the U.S. Constitution, and the restrictions in this bill impermissibly run afoul of that protection. Finally, the bill provides no meaningful standards to assist in determining whether games would fall within the legislation's purview.

The lack of decipherable standards is particularly troubling for those who would be forced to interpret A.B. 1179. The bill defines "violent video games" as those that meet a three-part analysis based on the legal test for obscenity (sec. 1746(d)(1)(A), or that meet federal death penalty standards for killings that are "heinous, cruel, or depraved" (sec. 1746(d)(1)(B)). The obscenity-based inquiry would force manufacturers and retailers to independently apply to each game sold a constantly changing, legally and factually complicated "community standard" that courts and juries have struggled to identify and apply for years. In a similar vein, the federal death penalty standard is one decided by juries on a case-by-case basis, and is ill-suited to providing meaningful guidance on whether the sale of a game will engender liability. Further, the bill sets an impossible threshold by forcing a pre-judgment on whether a particular player will "relish" a virtual action, or whether that player will intend to commit certain actions in the game (e.g., sec. 1746(d)(2)), prior to the sale.

The new labeling requirements imposed by A.B. 1179 will invite subjective claims against retailers and manufacturers based on individual games, and the danger is not adequately mitigated by the affirmative defenses allowed in the bill. Affirmative defenses are asserted after an action begins, but don't prevent prosecutions or lawsuits in the first instance. The labeling requirements will create significant shipping and distribution difficulties (and liabilities) for retailers by mandating separate systems and stock for California and the other 49 states. They competitively and financially disadvantage California retailers and Internet vendors by subjecting games to tougher limitations than those of other states. The labeling requirements also call into question the fate of retailers' existing stock, and the bill as a whole provides no guidance to retailers on how to treat unlabeled, pre-existing stock.

It is IEMA's belief that tangible and impressive progress is being made through voluntary cooperation between IEMA and the Entertainment Software Ratings Board (ESRB) with regard to stemming the accessibility of violent games to minors. IEMA retailers voluntarily pledged to implement carding policies by the end of 2004 and have partnered with the ESRB to provide educational materials on ratings to consumers. Even before the end of the implementation period, our members' success rate of preventing minors from purchasing inappropriate games without parental approval skyrocketed to match that of movie theatre owners - long held up as the "Gold Standard" in ratings enforcement. Now, only partially through the first full year of their new policies, our members are confident of continued success.

This year, the State of California implemented a new law requiring retailers to post and make available information on video games ratings. That effort positively builds on industry and retailer efforts to educate consumers and empower parents to make informed game choices for their children. A.B. 1179, on the other hand, unnecessarily inflicts harmful restrictions and sanctions based on impossible standards, before the first law has even had a chance to have a real impact.

This legislation will have a serious and harmful effect on California retailers and the thousands of individuals that they employ. We respectfully request that you veto A.B. 1179.

Sincerely,

Hal Halpin
President

About the IEMA:
The Interactive Entertainment Merchants Association (IEMA) is the non-profit trade association dedicated to serving the business interests of leading retailers that sell interactive entertainment software (including video and computer games, multimedia entertainment, peripherals and other software). Member companies of the IEMA collectively account for approximately seventy-five percent of the $10.4 billion annual interactive entertainment business in the United States. [http://www.iema.org]

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