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CCPA Loyalty Club FAQ: Is a Retailer Required to Delete Information Concerning a Loyalty Member?

October 11, 2019

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Typically no.

Loyalty programs can be, and are, structured in a variety of different ways.  Some programs track dollars spent by a consumer, others track products purchased.  Some programs are free to participate in, others require consumers to purchase membership.  Some programs offer consumers additional products, other programs offer prizes, money, or third party products.  All loyalty programs share one thing in common however – they provide some form of reward to a consumer in recognition of (or in exchange for) their repeat purchasing patterns.

One of the rights conferred by the CCPA is the ability of a consumer to request that a business delete personal information “which the business has collected from the consumer.”  While numerous retailers have expressed confusion regarding whether that right requires the deletion of loyalty program related data, it is important to remember the right to deletion is not an absolute right and may rarely

Supreme Court Denies Review in Website Accessibility Case Against Domino’s Pizza

Businesses should expect that lawsuits and demand letters alleging that their websites violate the Americans with Disabilities Act (“ADA”) will continue to increase in the wake of the United States Supreme Court’s October 7, 2019 decision denying Domino’s Pizza’s (“Domino’s”) petition for a writ of certiorari in the Robles v. Domino’s Pizza case. The Supreme Court’s decision to deny certiorari to Domino’s petition will send the lawsuit back to the United States District Court for the Central District of California to be tried on its merits.

Guillermo Robles (“Robles”) filed this lawsuit in September 2016 alleging, in part, that Domino’s website contained barriers to accessibility in violation of the ADA. Robles alleged that he unsuccessfully tried to order custom pizza online from a nearby Domino’s location. Robles sought, in part, a permanent injunction requiring Domino’s website to comply with the Web Content Accessibility Guidelines (“WCAG”) 2.0.

In March 2017, the District

Stop the CCPA Fearmongering: Retailer Loyalty Programs Will Survive

Anytime a new statute or regulation comes along, some law firms unfortunately flag issues that may not be of true concern to companies, or highlight problems that may not, in fact, exist.  Unfortunately, that continues to happen in connection with the California Consumer Privacy Act (“CCPA”).  In the context of retailer loyalty or reward programs, firms have said that the CCPA may spell the “end of loyalty programs,” or implied that the CCPA could lead to “the potential elimination of loyalty programs due to the nondiscrimination requirements.”  Some law firms have gone so far as to advise retailers to “address the issue[s]” caused by their loyalty programs by “not offer[ing] preferential pricing through loyalty programs” or by “mak[ing] loyalty program pricing available to all customers” regardless of whether they are, in fact, members of the loyalty program.  Such changes would, of course, destroy the business-case for having a loyalty program

Congress Presses FDA to Act on CBD Regulations

Congress Presses FDA to Act on CBD Regulations

September 26, 2019

Authored by: Bryan Cave, Brandon Neuschafer and Merrit Jones

Following statements by the U.S. Food and Drug Administration that cannabidoil (CBD) in food and beverage products remains illegal, and amid the patchwork of state laws and enforcement actions, a group of U.S. lawmakers, led by Reps. Chellie Pingree (D-Maine) and James Comer (R-Ky.), have urged the FDA to “quickly adopt a policy of enforcement discretion and to consider issuing an interim final rule to regulate CBD as a dietary supplement and food additive while simultaneously moving forward with a robust framework for evaluating the safety and accurate labeling of these products.” The letter stated that the agency’s “current regulatory posture on CBD has created significant regulatory and legal uncertainty for participants in this quickly evolving industry. We are discouraged by FDA’s estimation that a rulemaking process could span 3 to 5 years. We believe there are more expeditious measures that FDA could take that would establish regulatory clarity

New York Law to Take Effect Requiring Warning, Tip Restraints for Clothing Storage Units

September 20, 2019

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New York furniture retailers and manufacturers have until October 12, 2019 to comply with a New York state law that requires that clothing storage units be labeled with a permanent tip hazard warning and sold with a tip restraint device.

The law, named “Harper’s Law” after a 3-year-old boy who died from a furniture tip-over incident, requires that clothing storage units comply with a voluntary industry safety standard, ASTM F2057, which provides minimum stability standards, requires that covered furniture come with wall-anchoring kits, and be labeled with a permanent tip-hazard warning.

Sale of Crib Bumpers Banned: Also taking effect on October 12, a New York law bans the sale of crib bumper pads and prohibits their use in child care facilities or places of public accommodation. New York State is the third U.S. state to ban crib bumper pads, along with Maryland and Ohio. Crib bumpers are also

FTC Warns Companies Against Advertising CBD Products as Treating or Curing Diseases

The U.S. Federal Trade Commission has announced that it sent warning letters to three companies that sell “oils, tinctures, capsules, ‘gummies,’ and creams containing cannabidiol (CBD),” a chemical compound derived from the cannabis plant. The letters warn the companies, which have not been identified, that “it is illegal to advertise that a product can prevent, treat, or cure human disease without competent and reliable scientific evidence to support such claims.”

The FTC states that each company marketed its CBD products as being able to “treat or cure serious disease and health conditions,” such as relieving “’even the most agonizing pain’ better than prescription opioid painkillers,” or treating cancer, Alzheimer’s disease, multiple sclerosis (MS), fibromyalgia, cigarette addiction, colitis, schizophrenia, anxiety, depression, Lou Gehrig’s Disease (ALS), stroke, Parkinson’s disease, epilepsy, traumatic brain injuries, diabetes, Crohn’s disease, psoriasis, and AIDS.

In the letters, the FTC urges the companies to review all claims

Food Suppliers: Understand What Your Contamination and Recall Insurance Policies Cover — Then Plan Accordingly

Last year saw a massive E. coli outbreak linked to romaine lettuce which left growers, packers and retailers struggling to identify root causes and assign liability – all while trying to protect end users from illness and injury.  To address the costs of contamination and recalls, food producers and manufacturers commonly obtain contamination insurance.  However, typical contamination policies cover only those losses incurred due to actual contamination, while arguably providing no coverage for recalls due to potential contamination.  A company that recalled its salads due to a risk that its romaine was contaminated with E. coli faces the likelihood that its insurer will claim the recall costs are not covered under the standard food contamination insurance policies – even though the recall was in the public’s best interest.  Food suppliers should evaluate whether there is a gap in their insurance coverage created by the limited language in certain contamination policies

No Longer a “Whisper” – California Appellate Court Joins List of Courts to Weigh in on Website Accessibility

In the first decision by a California appellate court addressing the application of Title III of the Americans with Disabilities Act (“ADA”) to websites, the court in Thurston v. Midvale Corp. (Sept. 3, 2019) 2019 WL 4166620, affirmed summary judgment for the plaintiff and held that the ADA, as incorporated by California’s Unruh Act, applies to websites connected to a brick and mortar business.

California’s Court of Appeal for the Second Appellate District declined to adopt the position of the U.S. Court of Appeals for the Third Circuit that the ADA applies only to physical locations. Instead, the court followed the position of the U.S. Court of Appeals for the Ninth Circuit, holding that “including websites connected to a physical place of public accommodation is not only consistent with the plain language of Title III, but it is also consistent with Congress’s mandate that the ADA keep pace with changing

Senate Members Ask DOJ to Take Action as Number of Website Accessibility Lawsuits Continues to Rise

Members of Congress are once again asking the U.S. Department of Justice (“DOJ”) to take action addressing website accessibility under the Americans with Disabilities Act (“ADA”) in light of the increasing number of lawsuits and claim letters asserting violation of the ADA.

Based on the first six months, 2019 is likely to exceed the records set in 2018 for the number of website accessibility cases filed, according to digital accessibility solutions provider AudioEye, which tracks such case filings. More than half of the cases filed, or 55 percent, were against retailers, followed by complaints against defendants in the hotel, restaurant, banking, and real estate industries. Many of those defendants have been hit with more than one lawsuit.

Despite the increasing number of lawsuits and claim letters, the DOJ has not issued regulations concerning website accessibility under the ADA. As we previously reported, the DOJ issued an Advanced Notice of

Making the Case for the Long-Term Benefits of Corporate Sustainability Pledges

During Steve Poplawski’s June presentation at the Chemical Industry Council of Illinois’ Hot Topics conference on the opportunities and challenges presented by current efforts to make the life cycle of plastics more sustainable, one of the challenges raised by the audience was whether corporate sustainability pledges to improve packaging were getting ahead of consumer acceptance. An article published by WasteDive focusing on McDonald’s green pilot restaurants in Canada, suggests there is a business case for risking being ahead of consumer acceptance on this issue as a way of being ahead of an inevitable curve promoted by efforts like Yelp’s piloting of sustainability scoring at restaurants.

In speaking to over 200 EHS professionals in Kansas City in April, Steve made a similar argument on doubling down on sustainability.  In that presentation, Steve made the case that it was to every company’s advantage to develop and own their individual corporate sustainability

U.S. Supreme Court Strikes Down Bar on “Immoral or Scandalous” Trademarks

On June 24, 2019, the U.S. Supreme Court struck down as unconstitutional the Lanham Act’s “immoral or scandalous” prohibition on trademark registration.  In Iancu v. Brunetti, the Court held—in context of Brunetti’s failed attempt to register the trademark “FUCT” for use in connection with a clothing line—that the noted provision violates the First Amendment because it “disfavors certain ideas.”  In doing so, the Supreme Court built on its holding in Matal v. Tam, 137 S. Ct. 1744 (2017), that the Lanham Act’s bar on the registration of “disparag[ing]” trademarks was invalid under the First Amendment as a viewpoint-based restriction.  Tam involved the use of the slur “Slants” as the name and trademark of an all-Asian American musical group.

Justice Kagan, who authored the Brunetti majority opinion, noted that the U.S. Patent and Trademark Office (PTO) had found that “FUCT” met its test for “immoral or scandalous” marks, in

California Prop. 65 Regulation Exempts Certain Coffee Chemicals From Cancer Warning; Stay in Coffee Case Lifted

June 26, 2019

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California’s Office of Environmental Health Hazard Assessment (“OEHHA”) has finalized a highly anticipated Proposition 65 regulation relating to coffee. The regulation, California Code of Regulations Section 25704, takes effect October 1, 2019. Section 25704 provides: “Exposures to chemicals in coffee, listed on or before March 15, 2019 as known to the state to cause cancer, that are created by and inherent in the processes of roasting coffee beans or brewing coffee do not pose a significant risk of cancer.”

As we previously reported, OEHHA issued a notice of proposed rulemaking concerning the regulation in June 2018. The Office of Administrative Law approved adoption of the regulation on June 3, 2019, and OEHHA issued a Final Statement of Reasons on June 7.

OEHHA’s Final Statement of Reasons concludes that “the weight of the evidence from the very large number of studies in the scientific literature does not support

Domino’s Petitions Supreme Court for Review of Unfavorable Website Accessibility Decision

Domino’s Pizza LLC has submitted a petition asking the U.S. Supreme Court to review and reverse a decision from the Ninth Circuit Court of Appeals that allowed a website accessibility case to proceed against Domino’s. The question presented to the Supreme Court by Domino’s is“[w]hether Title III of the ADA requires a website or mobile application that offers goods or services to the public to satisfy discrete accessibility requirements with respect to individuals with disabilities.” Domino’s Pizza LLC v. Guillermo Robles, Petition for a Writ of Certiorari, at 2.

As we previously reported, in June 2019, the Ninth Circuit held in Robles v. Domino’s Pizza, LLC, that the ADA applies to the Domino’s website and mobile application, rejecting the due process and primary jurisdiction arguments that had led the district court to stay the action.

Title III of the ADA applies to “physical places of public accommodation.”   42 U.S.C.

Nevada Beats California to the Punch — New Privacy Requirements To Take Effect in October

On May 29, 2019, Nevada adopted Senate Bill No. 220 emulating portions of the California Consumer Protection Act (“CCPA”) with respect to permitting individuals to opt out of the sale of their personal information.  While Nevada may be the second state to pass legislation on the sale of personal information, its bill will be the first to go into force.  SB 220 goes into effect October 1, 2019, before the CCPA’s current compliance deadline of January 1, 2020.

The net result is that companies that thought they had until the end of the year (or until the California Attorney General could bring an enforcement action in July of 2020) to fully comply with the opt-out-of-sale portion of the CCPA, may need to address the issue now in order to meet Nevada’s October deadline.

While the Nevada law does not expressly require notice to individuals of this right in the privacy policy like the

New York District Court Addresses Mootness Argument in Website Accessibility Case

As businesses continue to face lawsuits and demand letters alleging that their websites are inaccessible to blind and deaf patrons in violation of the Americans with Disabilities Act (“ADA”), courts across the country continue to weigh in on the issue.  On Tuesday, June 4, 2019, the United States District Court for the Southern District of New York issued a decision in Diaz v. The Kroger Co. – holding that the Court lacked both subject matter and personal jurisdiction over the case because the complaint had been rendered moot by modifications defendant made to the website and because the defendant did not sell goods or services in New York.  Diaz v. The Kroger Co., Case No. 18-cv-07953, Opinion and Order [Dkt. No. 35]. 

In Diaz, the plaintiff, a visually-impaired and legally blind individual who resides in the Bronx, New York, alleged that the website of defendant Kroger, a supermarket chain with

APIs Have Broad Applications, From E-Commerce to Payroll Management

June 3, 2019

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This post is the second in a two-part series concerning emerging uses and considerations involving application programming interfaces, or “APIs.”    

Most retailers and other large and mid-size businesses, and even some small businesses, utilize public APIs:

  • Businesses who vet their employees against a government database may be doing so through an API.
  • Businesses that rely on vendors to provide data or electronic services (such as HR and payroll management) may be receiving them through APIs.
  • Businesses that maintain databases associated with their website or applications, likely communicate with that database through an API.
  • Businesses that provide electronic data or electronic services are likely doing so through an API.  When the API license is presented as a take-it-or-leave-it agreement, the terms are often written to protect the provider from any liability for an offering from which the provider derives no direct financial benefit.

Still, regardless as to whether

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