Operation of an Internet Website or Application

PURPOSE: The attorney general administers and enforces the provisions of the Missouri Merchandising Practices Act (MMPA), Chapter 407, RSMo. The attorney general may make rules necessary to the administration and enforcement of the provisions of Chapter 407, RSMo, and, in order to provide notice to the public, may specify the meaning of terms whether or not used in the Act. This rule does not contain an exhaustive list of practices that violate the Act. Instead, this rule identifies certain specific practices that violate section 407.020, RSMo. To provide notice to the public of the basis for the attorney general’s actions, the foundation and rationale set forth in this purpose statement also sets forth more fully the purpose and foundation for 15 CSR 60-18.010 through 15 CSR 60-18.070. The MMPA prohibits unlawful, fraudulent, and unfair practices in connection with any trade or commerce in the state of Missouri. “[T]he literal words [of the MMPA] cover every practice imaginable and every unfairness to whatever degree.” Ports Petroleum Co. v. Nixon, 37 S.W.3d 237, 240 (Mo. banc 2001). The State of Missouri, furthermore, has a “strong interest in protecting children.” State v. Wright, 751 S.W.2d 48, 52 (1988). The MMPA may be used to prosecute violations of other statutes, including criminal statutes protecting children from exposure to pornographic materials. Violations of many other laws, especially violations of laws protecting minors from sexually explicit content by commercial actors, are necessarily unfair, deceptive, fraudulent, and otherwise unlawful practices. The Missouri Supreme Court has concluded that the MMPA covers any violation of “any public policy” so long as the violation of that other law “presents a risk” of “substantial injury to consumers.” Huch v. Charter Commun., Inc., 290 S.W.3d 721, 725 (Mo. banc 2009) (quoting 15 CSR 60-8.020(1)). The attorney general has determined that a rulemaking is necessary to carry out the purposes of the MMPA. Missouri law prohibits “furnishing pornographic material to minors” and “promoting pornography for minors or obscenity.” sections 573.030–.040, RSMo. The U.S. Supreme Court has long upheld laws just like these. Ginsberg v. New York, 390 U.S. 629, 641 (1968). Age verification has long been required in brick-and-mortar stores distributing pornographic material, see id., and Missouri’s law does not differentiate between brick-and-mortar stores and the internet when it comes to prohibiting companies from providing pornographic material to minors, sections 573.030–.040, RSMo. Yet with the explosion of the internet, companies have found many ways to avoid accountability under Missouri law. It is thus necessary to implement regulations that facilitate enforcement of Missouri’s existing laws. The internet has enabled companies to skirt compliance with laws protecting minors, which is why access to pornography by minors has exploded in recent years. Between 2006 and 2022, the number of children aged thirteen (13) or younger exposed to online pornography doubled, from just over 25% to 54%. See Chiara Sabina, et al., The Nature and Dynamics of Internet Pornography Exposure for Youth, 11 CyberPsychology & Behavior 691, 692 (2008); Michael B. Robb & Supreet Mann, Common Sense Media, Teens and Pornography at 5 (2022), https:// perma.cc/YG3L-W3LK. The average age a child first views online pornography is 12 years old. American College of Pediatricians, Factsheet: The Impact of Pornography on Children (Aug. 2024), https://acpeds.org/assets/positionpapers/factsheet_-the-impact-ofpornography-on-children.pdf. The number of children exposed to online pornography at age ten (10) or younger increased more than seven-fold during the same time period, from less than 2% in 2008 to 15% by 2022. Id. The vast majority—84.4%—of 14- to 18-year-old males and 57% of 14- to 18-year-old females have been exposed to hardcore pornography online, with some studies reporting even higher figures. Paul J. Wright, Bryant Paul & Debby Herbenick, Preliminary Insights from a U.S. Probability Sample on Adolescents’ Pornography Exposure, Media Psychology, and Sexual Aggression, 26 J. of Health Commc’n 39, 46 (2021). Put simply, when pornography moved online, organizations stopped complying with preexisting laws requiring age verification. Another factor that makes it easier for companies to skirt compliance with Missouri law is that some of the biggest companies that distribute pornography to minors are located not just outside Missouri, but also outside the United States. For example, one of the largest operators of online pornography, Pornhub, is “the 12th most visited website in the world . . . ahead of Amazon, TikTok, and LinkedIn,” Bradley Saacks, Inside Pornhub’s Finances, Semafor (Jul. 27, 2023), https://perma.cc/ EC8Q-3FEU, and it is owned by a Canadian multinational conglomerate with separate spinoff companies in haven countries. What is worse, the nature of the material has changed significantly. Material readily accessible to children today is not the “‘girlie’ picture magazines” of previous generations. Ginsberg, 390 U.S. at 634. Instead, much of the material online is hardcore pornography of the type that satisfies the Supreme Court’s definition of obscenity—speech that is not constitutionally protected for adults, let alone children. Id. at 635. Because of the ubiquity of smart phones, tablets, and the internet, Missouri’s children today “can easily be exposed to the most extreme, misogynistic sex acts imaginable.” David Horsey, Our Social Experiment: Kids with Access to Hard-Core Porn, L.A. Times (Sept. 3, 2013), https://www.latimes. com/opinion/topoftheticket/la-xpm-2013-sep-03-la-na-tt-kidsaccess-porn-20130822-story.html (last accessed Mar. 25, 2025). This content has demonstrated negative effects on the brain, similar to the neurological effects seen with gambling addicts, drug addicts, and alcoholics. See Todd Love et al., Neuroscience of Internet Pornography Addition: A Review and Update, 5(3) Behavioral Sciences 388 (2015); Simone Kühn & Jürgen Gallinat, Brain Structure and Functional Connectivity Associated with Pornography Consumption: the Brain on Porn, JAMA Psychiatry (July 2014), https://perma.cc/YAE3-WWVB. “[P]ornography consumption is associated with decreased brain volume in the right striatum, decreased left striatum activation, and lower functional connectivity to the prefrontal cortex.” Id. And the effects are most pronounced among minors. “Adolescents are more susceptible to sexually explicit material because of the significant physical, emotional, cognitive, social, spiritual, and sexual changes associated with adolescent development.” Romney, Screens, Teens, and Porn Scenes, supra at 52; Jennifer A. Brown & Jonathan Wisco, The Components of the Adolescent Brain and Its Unique Sensitivity to Sexually Explicit Material, 72 J. Adolescence 10, 11–12 (2019). An age-verification rule is necessary not only because companies are flouting Missouri law, but also to give parents adequate tools to protect their children from the many harmful effects of minors viewing pornography. Parents “who have this primary responsibility for children’s well-being are entitled to the support of laws designed to aid discharge of that responsibility.” Ginsberg, 390 U.S. at 639. Missouri law already requires age verification. This regulation enhances the tools to facilitate compliance with Missouri law. This proposed rule clarifies that the failure of an individual or commercial entity to use certain commercially reasonable age verification technology to protect minors in Missouri from accessing sexually explicit content online constitutes an “unfair practice” under the MMPA. Age verification, including online age verification, has long been required to purchase agerestricted items or to engage in other age-restricted activities. The MMPA currently contains other age verification measures such as those relating to the sale of tobacco or vape products or the purchase of precious metals. section 407.292; 407.926, RSMo. Furthermore, nothing in this proposed rule limits the ability of adults to view sexually explicit material online. The proposed rule simply requires that purveyors of online pornography take certain minimum, commercially reasonable steps to ensure that they are not recklessly or knowingly inflicting significant (and well documented) harms on Missouri’s children. (1) It is an unfair, deceptive, fraudulent, or otherwise unlawful practice for any person or commercial entity to operate a website, application, or self-contained sexual content segment, including a social media platform, knowing (or with reckless disregard about the fact) that the website, application, or self-contained sexual content segment contains a substantial portion of material pornographic for minors and is accessible in the state of Missouri, unless such individual or commercial entity uses reasonable age verification methods as described by 15 CSR 60-18.030 to verify that the individual attempting to access the website, application, or self-contained segment of the website or application is eighteen (18) years of age or older. This section shall not apply to search engines. (2) Any person or commercial entity covered by 15 CSR 6018.020(1) that performs the age verification, or any third party that performs the age verification required by 15 CSR 6018.020(1), may not retain any identifying information of the individual whose age is being verified unless retention of the identifying information is otherwise required by law or a court order. (3) Any person or commercial entity covered by this chapter that performs the age verification required by 15 CSR 60-18.020(1), or any third party that performs the age verification required by 15 CSR 60-18.020(1), must use commercially reasonable methods to secure all information collected and transmitted under this chapter. AUTHORITY: section 407.020, RSMo Supp. 2025, and section 407.145, RSMo 2016.* Original rule filed April 10, 2025, effective Nov. 30, 2025. *Original authority: 407.020, RSMo 1967, amended 1973, 1985, 1986, 1992, 1994, 1995, 2000, 2008, 2014, 2020, and 407.145, RSMo 1986, amended 1993.