S T A T E   O F   N E W   Y O R K
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                                  2837

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 21, 2009
                               ___________

Introduced  by  M.  of  A. KOLB, REILICH, WALKER, BALL, ERRIGO, SPANO --
  Multi-Sponsored by -- M.  of A. BACALLES, BARCLAY,  BURLING,  CALHOUN,
  CROUCH,  GIGLIO,  OAKS, RABBITT, TOWNSEND -- read once and referred to
  the Committee on Consumer Affairs and Protection

AN ACT to amend the general business law, in relation to prohibiting the
  sale or rental of certain  video  games,  which  are  pornographic  or
  promote  violence or illegal drug use, to minors and requiring warning
  labels on such video games

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Legislative findings. The legislature hereby finds that the
youth  of  New  York state are entitled to grow-up in a positive setting
and be shielded from graphic violence and offensive depictions now found
in video games. It is a well known fact that children between  the  ages
of  seven and seventeen play video games for an average of eight hours a
week. A subset of video games feature violence, gore, and illegal activ-
ity, which has raised concern among parents, educators, child advocates,
medical professionals, and policy makers.  The  legislature  also  finds
that  in  order to raise a healthy, well adjusted child, parents must be
aware of what their children are doing for fun, specifically what  types
of  influences  are in their lives. Legislation is an appropriate remedy
to aid parents in protecting the physical and emotional health of  their
children.  The  legislature  also  finds that although the Entertainment
Software Rating Board (ESRB) has a rating system  in  place,  it  is  an
insufficient  warning  for parents. Further, the ESRB rating system is a
voluntary system and such board's  voluntary  participation  in  such  a
system  shows  that  there  is  a  problem  such board feels needs to be
addressed. This legislation would ensure that New  York's  children  are
protected  and  a  more specific warning regarding the actual content of
certain video games are in order.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05051-01-9

              

A. 2837                             2

  Concern about violent video games is based upon  the  assumption  that
they  contribute  to  aggression  and  violence among young players. The
legislature  finds  that  scientific  evidence  shows   a   cause-effect
relationship  between  television violence and aggression among children
who  watch such violence and aggression. Based upon this research, simi-
lar findings are expected concerning  video  games.    These  games  are
believed  to  have  an even greater impact because: (1) children like to
imitate the actions of characters such as the characters  such  children
play  as  or against in a video game; (2) video games include much repe-
tition and with repetition comes  a  behavioral  rehearsal  for  violent
activity  as  violent  games  are  played  over  and over again; and (3)
rewards increase learning, and video  games  are  based  upon  a  reward
system.  The legislature finds that concern about video game violence is
warranted. In an Anderson & Bushman study of 2001 there is a  consistent
pattern  of  results concerning violent video games' effect on children.
It has been shown that exposure to violent video  games  increases:  (1)
physiological arousal; (2) aggressive thoughts; (3) aggressive emotions;
and (4) aggressive actions in those children and youths who play violent
video  games.  It has also been established that even limited amounts of
sexual violence can desensitize viewers. In a study conducted  in  1995,
viewers of films containing sexual violence expressed significantly less
sympathy  for  domestic  violence victims, and rated their injuries less
severe, than did a group not exposed to these films. It is most alarming
to apply the results of this study to violent  video  games,  which  are
played  over  and  over  again, while a film may be watched only once or
twice. With increased repetition comes an even greater chance of  desen-
sitization to violence, especially against women. As children play these
games  on  a  daily basis, it may cause some children to lose touch with
reality. In some cases,  it  has  been  reported  that  children  become
addicted  to  playing  these  games.  In a study of 387 children, twenty
percent of 12-16 year olds were  classified  as  currently  addicted  to
playing  computer-based video games and one in four adolescents had been
addicted at some point in his or her life.
  The legislature recognizes the United States supreme court's  inclina-
tion  to  protect  first amendment rights; however the state of New York
has a compelling interest to protect the emotional health of the state's
children and assist parents to be  the  guardians  of  their  children's
well-being. A specific warning label will function as a crucial reminder
to  those  parents who would otherwise be unaware of the violent content
contained in video games.
  Further, the legislature recognizes the fundamental rights  of  adults
to  purchase  a  video  game  for themselves or as a custodial adult for
their children, therefore this  legislation  does  not  infringe  on  an
adult's  right  to  make  such a purchase. However, the legislature does
recognize that minors are purchasing violent video games with little  or
no  resistance  from  retailers, as such this legislation would restrict
the sale of select video games to minors in order to protect  them  from
an adult rated game with offensive, mature and violent content.
  S 2. The general business law is amended by adding a new section 391-q
to read as follows:
  S  391-Q.  SALE  OF  CERTAIN VIDEO GAMES TO MINORS PROHIBITED; WARNING
LABELS REQUIRED. 1. NO PERSON, PARTNERSHIP OR CORPORATION SHALL SELL  OR
RENT  OR  OFFER  TO SELL OR RENT TO ANY PERSON UNDER THE AGE OF EIGHTEEN
YEARS ANY VIDEO GAME THAT CONTAINS DEPICTIONS DESCRIPTIVE OF, ADVOCATING
OR GLAMORIZING COMMISSION OF A VIOLENT  CRIME,  SUICIDE,  SODOMY,  RAPE,
INCEST,  BESTIALITY,  SADO-MASOCHISM,  ANY  FORM OF SEXUAL ACTIVITY IN A

A. 2837                             3

VIOLENT CONTEXT, OR ADVOCATING OR ENCOURAGING  MURDER,  VIOLENT  RACISM,
RELIGIOUS VIOLENCE, MORBID VIOLENCE OR THE ILLEGAL USE OF DRUGS OR ALCO-
HOL.
  2.  THE MANUFACTURER OF ANY VIDEO GAME AS DESCRIBED IN SUBDIVISION ONE
OF THIS SECTION, SHALL AFFIX TO THE FRONT OF THE  OUTSIDE  PACKAGING  OF
ANY  SUCH  VIDEO  GAME TO BE SOLD IN NEW YORK STATE, AND THE RETAILER OF
ANY VIDEO GAME AS DESCRIBED IN SUBDIVISION ONE  OF  THIS  SECTION  SHALL
AFFIX  TO  THE  FRONT  OF  THE  OUTSIDE PACKAGING OF ANY SUCH VIDEO GAME
OFFERED FOR RENTAL OR RESALE, A WARNING LABEL TO READ  SUBSTANTIALLY  AS
FOLLOWS:
  "18+  WARNING,  SALE  OR  RENTAL TO ADULTS ONLY.  MAY CONTAIN EXPLICIT
DEPICTIONS DESCRIPTIVE OF OR ADVOCATING ONE OR MORE OF THE FOLLOWING:
  COMMISSION OF A VIOLENT CRIME
  SUICIDE
  SODOMY
  RAPE
  INCEST
  BESTIALITY
  VIOLENT RACISM
  RELIGIOUS VIOLENCE
  SADO-MASOCHISM
  SEXUAL ASSAULT
  SEXUAL ACTIVITY
  MURDER
  MORBID VIOLENCE
  ILLEGAL USE OF DRUGS OR ALCOHOL
  PARENTAL ADVISORY."  THIS LABEL SHALL BE AFFIXED  TO  ANY  VIDEO  GAME
THAT  CONTAINS  ANY  OF  THE ITEMS ENUMERATED ABOVE IN THIS SUBDIVISION,
REGARDLESS OF INDUSTRY RATINGS. THE PACKAGE MUST ALSO CONTAIN ANY RATING
THAT THE MANUFACTURER OR THE ENTERTAINMENT  SOFTWARE  RATING  BOARD  HAS
DETERMINED  TO BE AFFIXED ON ANY VIDEO GAME.  THE LABEL SHALL BE PRINTED
IN BLACK OR RED INK AND SHALL CONTAIN LETTERS OF EIGHT POINT  OR  LARGER
TYPE,  EXCEPT THAT THE WORDS "18+ WARNING" AND "SALE OR RENTAL TO ADULTS
ONLY" SHALL BE PRINTED IN LETTERS OF TEN POINT OR LARGER TYPE. THE LABEL
SHALL NOT READILY BE REMOVABLE FROM THE PACKAGE.
  3. EVERY PERSON, PARTNERSHIP OR CORPORATION ENGAGED IN THE RETAIL SALE
OR RENTAL OF VIDEO GAMES  SHALL  STORE  AND  DISPLAY  SUCH  VIDEO  GAMES
CONTAINING  CONTENTS  LISTED  IN  SUBDIVISION  TWO  OF THIS SECTION IN A
SEALED AND LOCKED CONTAINER, BEHIND A SERVICE COUNTER IN AN  AREA  INAC-
CESSIBLE  BY  THE GENERAL PUBLIC, OR IN ANY OTHER MANNER WHICH RESTRICTS
ACCESS TO SUCH VIDEO GAMES.
  4. A VIOLATION OF THE PROVISIONS OF SUBDIVISION ONE  OR  TWO  OF  THIS
SECTION SHALL BE A VIOLATION AS DEFINED IN THE PENAL LAW.
  5.  ANY  PERSON,  MANUFACTURER,  RETAILER,  OWNER, PARTNERSHIP, CORPO-
RATION, PROPRIETOR OR MANAGER OF A RETAIL COMMERCIAL  ESTABLISHMENT  WHO
KNOWINGLY  VIOLATES THE PROVISIONS OF THIS SECTION SHALL BE SUBJECT TO A
CIVIL PENALTY NOT TO EXCEED ONE THOUSAND DOLLARS FOR  EACH  RETAIL  UNIT
SOLD OR RENTED.
  6.  A NON-CUSTODIAL ADULT, EIGHTEEN YEARS OF AGE OR OLDER, WHO BUYS OR
RENTS FOR A MINOR A VIDEO  GAME  REGULATED  BY  THIS  SECTION  SHALL  BE
SUBJECT  TO  A CIVIL PENALTY NOT TO EXCEED ONE THOUSAND DOLLARS FOR EACH
RETAIL UNIT PURCHASED OR RENTED AND SUCH ACT SHALL  BE  A  VIOLATION  AS
DEFINED IN THE PENAL LAW.
  7.  A  COURT  MAY  UPON  CONVICTION  OF A PERSON FOR VIOLATION OF THIS
SECTION, ORDER THE CONFISCATION OF  ANY  MATERIALS  IN  THE  DEFENDANT'S

A. 2837                             4

POSSESSION  OR  CONTROL  WHICH DO NOT BEAR THE LABELING REQUIRED BY THIS
SECTION AND WHICH DOES NOT BEAR THE RATING CLEARLY DISPLAYED.
  8. ANY RETAILER, OWNER, PARTNERSHIP OR CORPORATION THAT SELLS OR RENTS
OR OFFERS TO SELL OR RENT ANY VIDEO GAME DESCRIBED IN SUBDIVISION ONE OF
THIS  SECTION, SHALL HAVE AVAILABLE FOR EXAMINATION A COPY OF SUCH VIDEO
GAME WHICH CAN BE REVIEWED AT THE PLACE  OF  SALE  OR  RENTAL  AND  SUCH
RETAILER  SHOULD  SUPPLY  THE  NECESSARY  EQUIPMENT NEEDED TO REVIEW THE
VIDEO GAME, INCLUDING BUT NOT LIMITED  TO,  A  WORKING  TELEVISION,  THE
NECESSARY  GAME  SYSTEM  AND/OR ANY OTHER EQUIPMENT NEEDED TO REVIEW THE
VIDEO GAME.
  9. SALE OR RENTAL OF ANY VIDEO GAME THAT CONTAINS ANY CONTENTS  LISTED
IN  SUBDIVISION TWO OF THIS SECTION, SHALL BE MADE ONLY TO AN INDIVIDUAL
WHO DEMONSTRATES, THROUGH (A) A VALID DRIVER'S LICENSE  OR  NON-DRIVER'S
IDENTIFICATION  AND  ISSUED  BY  THE COMMISSIONER OF MOTOR VEHICLES, THE
FEDERAL  GOVERNMENT,  ANY  UNITED  STATES  TERRITORY,  COMMONWEALTH   OR
POSSESSION,  THE  DISTRICT  OF  COLUMBIA,  A STATE GOVERNMENT WITHIN THE
UNITED STATES OR A PROVINCIAL GOVERNMENT OF THE DOMINION OF  CANADA;  OR
(B) A VALID PASSPORT ISSUED BY THE UNITED STATES GOVERNMENT OR ANY OTHER
COUNTRY;  OR  (C)  AN  IDENTIFICATION  CARD ISSUED BY THE UNITED STATES,
INDICATING THAT THE INDIVIDUAL IS AT LEAST EIGHTEEN YEARS OF  AGE.  SUCH
IDENTIFICATION  NEED  NOT  BE  REQUIRED OF ANY INDIVIDUAL WHO REASONABLY
APPEARS TO BE AT LEAST THIRTY YEARS OF AGE, PROVIDED, HOWEVER, THAT SUCH
APPEARANCE SHALL NOT CONSTITUTE A DEFENSE IN  ANY  PROCEEDING  INVOLVING
SALE  OR RENTAL OF ANY VIDEO GAME, TO AN INDIVIDUAL UNDER EIGHTEEN YEARS
OF AGE.
  10. IN ANY PROCEEDING PURSUANT TO THIS SECTION, IT SHALL BE AN  AFFIR-
MATIVE  DEFENSE  THAT  A  PERSON  PURCHASING OR RENTING OR ATTEMPTING TO
PURCHASE OR RENT ANY VIDEO GAME DESCRIBED IN  SUBDIVISION  ONE  OF  THIS
SECTION  PRODUCED A DRIVER'S LICENSE OR A NON-DRIVER IDENTIFICATION CARD
APPARENTLY ISSUED BY A GOVERNMENT ENTITY OR OTHER IDENTIFICATION  PURSU-
ANT  TO  SUBDIVISION  NINE  OF  THIS SECTION, SUCCESSFULLY COMPLETED THE
TRANSACTION, AND THAT THE VIDEO GAME SOLD OR RENTED TO SUCH  PERSON  WAS
REASONABLE  RELIANCE UPON SUCH IDENTIFICATION AND TRANSACTION. IN EVALU-
ATING THE APPLICABILITY OF SUCH AFFIRMATIVE DEFENSE, CONSIDERATION SHALL
BE GIVEN TO ANY WRITTEN POLICY ADOPTED AND IMPLEMENTED BY THE SELLER  TO
EFFECTUATE THE PROVISIONS OF THIS SECTION. USE OF ANY METHOD OF AN ELEC-
TRONIC TRANSACTION SCAN SHALL NOT EXCUSE ANY PERSON OPERATING A PLACE OF
BUSINESS WHEREIN VIDEO GAMES ARE SOLD OR RENTED, OR THE AGENT OR EMPLOY-
EE  OF  SUCH PERSON, FROM THE EXERCISE OF DUE DILIGENCE. NOTWITHSTANDING
THE PROVISIONS OF THIS SUBDIVISION, ANY SUCH AFFIRMATIVE  DEFENSE  SHALL
NOT  BE  APPLICABLE IN ANY CIVIL OR CRIMINAL PROCEEDING, OR IN ANY OTHER
FORUM.
  11. FOR THE PURPOSES OF THIS SECTION "RATING" MEANS  THE  STANDARDIZED
DESIGNATION  COMMONLY USED TO INFORM PARENTS ABOUT VIDEO GAMES REGARDING
LISTENING AND VIEWING BY THEIR CHILDREN.
  S 3. Severability. If any clause, sentence, paragraph, subdivision  or
part  of  this  act, or the application thereof to any person or circum-
stance, shall be adjudged by any court of competent jurisdiction  to  be
invalid  or unconstitutional, such judgement shall not affect, impair or
invalidate the remainder thereof, but shall be confined in its operation
to the clause, sentence, paragraph, subdivision or part of this act,  or
in  its  application to the person or circumstance, directly involved in
the controversy in which such judgement shall have been rendered.
  S 4. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.