Bryan Cave Leighton Paisner Retail Blog

Retail Law

Other Posts

Main Content

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

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.

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

CPSC Notifies Consumer Product Manufacturers of Possible Data Breach of Safety Information

A number of retailers and manufacturers have recently received notices from the U.S. Consumer Product Safety Commission concerning a possible data breach. The CPSC’s letter advises recipients of an unauthorized release of confidential information that did not go through the procedures of 15 U.S.C. § 2055, also known as “Section 6(b)” of the Consumer Product Safety Act (CPSA).

Section 6(b) is intended to encourage candor between the CPSC and regulated companies, by assuring that sensitive information will be handled under procedures intended to ensure the accuracy and fairness of any disclosure.  Section 6(b) restricts the CPSC’s public disclosure of manufacturer and product specific information, and applies to information from which the public can readily determine the identity of a manufacturer.

The breach appears to concern a mass inadvertent disclosure of nonpublic manufacturer and product specific information.  It appears the information could have been released months ago, but the CPSC only recently

Bioengineered Food Disclosure Rules Finalized, Require Disclosure of “Detectable” GMOs

On December 21, 2018, the U.S. Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) published its final rule implementing the National Bioengineered Food Disclosure Standard (NBFDS) signed into law by President Obama in 2016.   The NBFDS preempted state and local genetic engineering labeling requirements and charged AMS with developing a national mandatory standard for disclosing the presence of bioengineered (BE) food.  The rule takes effect on February 19, 2019, and implementation will be phased in over the next three years.

As we previously reported, the NBDS requires food manufacturers, importers of food labeled for retail sale in the U.S. and some U.S. retailers to disclose foods and ingredients produced from foods that are or may be bioengineered.  The final rule defines “bioengineered food” as any food that “contains genetic material that has been modified through in vitro recombinant deoxyribonucleic acid (DNA) techniques and for which the modification

Ninth Circuit Issues Important Decision in Domino’s Website Accessibility Action

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, January 15, 2019, the United States Court of Appeals for the Ninth Circuit issued its much-awaited decision in the Robles v. Domino’s Pizza case – holding that the ADA applies to the Domino’s Pizza (“Domino’s”) website and mobile application (“app”), and rejecting due process and primary jurisdiction challenges raised by Domino’s successfully in the court below.

As we previously reported, in March 2017, the United States District Court for the Central District of California granted Domino’s motion to dismiss under the primary jurisdiction doctrine, which allows courts to stay or dismiss lawsuits pending the resolution of an issue by a government agency. The District Court held

California Court Grants Nonsuit in Website Accessibility Trial

A California court has dismissed a website accessibility case shortly after commencing trial, issuing a sua sponte nonsuit on grounds that the defendant credit union’s website is not subject to the ADA.

Martinez v. San Diego Credit Union, San Diego Superior Court Case No. 37-2017-00024673, would have been the only known website accessibility lawsuit to go to trial in the state of California. Instead, after commencing trial, the Court ordered the parties to submit trial briefs, inquired whether the parties would object to the Court issuing a sua sponte ruling at the outset of the case, and then granted the nonsuit.  In so ruling, the Court advised the parties that it agreed with the defendant credit union’s position that the complaint failed to state facts sufficient to constitute a cause of action, and that it wished to save plaintiff’s counsel the expense of flying its expert witness from the East

FDA Provides Guidance for New Nutrition and Supplement Facts Labels

On November 5, the FDA released non-binding guidance intended to answer questions related to Nutrition Facts and Supplement Facts Label and Serving Size final rules. As we previously reported, the rules were finalized in May 2016 and initially set a general compliance date of July 2018. The FDA has extended that deadline to January 1, 2020 for manufacturers with $10 million or more in annual food sales. Manufacturers with less than $10 million in annual food sales have an extra year to comply, until January 1, 2021.

The May 2016 rules require a revamped Nutrition Facts label that, among other things,

  • Increases the type size of certain nutrition information.
  • Requires declaring actual amount, in addition to percent Daily Value, of vitamin D, calcium, iron and potassium.
  • Requires declaring “Added sugars,” in grams and as percent Daily Value.
  • Updates the list of nutrients that are required or permitted.
  • Removes “Calories from

DOJ Says Online Businesses Have “Flexibility” in How to Make Websites Accessible

As we reported in June, a bi-partisan assembly of 103 members of the House of Representatives wrote a letter to Attorney General Jeff Sessions and asked the Department of Justice (“DOJ”) to “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles in the absence of clear statutory authority and issuance by the department of a final rule establishing website accessibility standards.” That letter urged the DOJ to “provide guidance and clarity with regard to website accessibility under the … ADA.”

On September 25, the DOJ responded to that letter. While the response does not directly address the members’ questions, it does state that the DOJ “is evaluating whether promulgating specific web accessibility standards through regulations is necessary and appropriate to ensure compliance with the ADA.”

The letter also provides some guidance that could prove useful to retailers

California Passes Amendments to Consumer Privacy Act

California Governor Brown recently signed into law SB 1121, which amends the California Consumer Privacy Act of 2018 to provide much-needed relief to retailers and other businesses that collect consumer information. The amendments take effect immediately.

The California Retailers Association (CRA) worked successfully with other business leaders as part of the Privacy Coalition to secure passage and signature of SB 1121, and will continue to work on a more comprehensive clean-up bill in 2019.

As we previously reported, the Act grants consumers various rights with regard to their personal information held by businesses, including:

  • The right to request that a business provide it with specific information the business has collected about them, including categories of information sold, and third parties to whom information is sold.
  • The right to request deletion of personal information the business has collected about the consumer. The business must comply unless one

Seattle Ban on Plastic Straws and Utensils Takes Effect

July 20, 2018

Categories

Seattle’s ban on plastic straws and utensils took effect on July 1, after the expiration of an exemption in a 2008 law requiring one-time-use food-service items to be compostable or recyclable.  The ban applies to food service businesses, including restaurants, delis, coffee shops, food trucks, cafeterias, and grocery stores.

Instead of providing plastic straws and utensils, on request, businesses may provide approved compostable alternatives for dine-in service, and compostable or recyclable take-out packaging. Though compostable plastic straws are allowed, environmental groups advocate using compostable paper-based straws. Flexible plastic straws can be provided to customers who need a straw because of medical reasons.

The law imposes fines of $250 on businesses that fail to comply. Other U.S. cities have considered similar bans on plastic straws. A similar ban in San Francisco passed a committee vote on Monday, and goes before the full board next week.

Seattle banned the use of Styrofoam packaging

Eleventh Circuit Holds Prior Settlement Does Not Render New Website Accessibility Case Moot

The Eleventh Circuit Court of Appeals has held that a prior settlement agreement, pursuant to which a defendant has agreed to improve website accessibility, does not necessarily render moot a new website accessibility lawsuit.

In Haynes v. Hooters of America, LLC, Case No. 17-13170 (11th Cir. June 19, 2018), the Court of Appeals concluded that the “plaintiff’s claims are not moot” as a result of a settlement agreement between Hooters and a different plaintiff in an almost identical prior lawsuit that required Hooters to improve accessibility of its website within 12 months.

As we previously reported, the district court had granted Hooters’ motion to dismiss the action, on grounds that Hooters was in the process of actively implementing a remediation plan for its website, and therefore the prior agreement rendered the new ADA action moot.

The Eleventh Circuit rejected this argument, however, and held that “this case is

WARNING: New Proposition 65 Warning Requirements Take Effect August 30, 2018

Retailers and manufacturers should take steps now to ensure they are compliant with the new California Proposition 65 warning regulations that take effect on August 30, 2018.

Proposition 65 prohibits retailers and manufacturers from knowingly and intentionally exposing California consumers to a chemical known to the State of California to cause cancer or developmental or reproductive harm without first providing a “clear and reasonable warning.”  (Cal. Health & Safety Code § 25249.6.) The regulations provide examples of “safe harbor” warnings that are deemed to be clear and reasonable under the new amendments. Notably, the use of the specific “safe harbor” warnings included in the regulations is not actually required. Retailers and manufacturers can use any clear and reasonable warning; however, using the examples provided ensures that the warning is sufficient.

As we previously reported, amendments to the warning regulations were issued in August 2016. The 2016 and the more

Website Accessibility Guidelines Get Update; California Court Limits Penalties to One Visit

An update has been published to the Web Content Accessibility Guidelines (WCAG) 2.0, the standards that have been applied by many courts in the absence of website accessibility regulations by the Department of Justice.

The new version, named WCAG 2.1, was published on June 5 by the World Wide Web Consortium (W3C), an industry group of website accessibility experts.

WCAG 2.1 amends the prior standards, which were issued in 2008, by adding 17 additional criteria to address accessibility barriers.  The updates are mainly related to mobile devices and disabilities that affect vision and cognitive function.

For example, WCAG 2.0 did not expressly address mobile applications, although many of the same criteria for website accessibility was also applicable to mobile apps. WCAG 2.1 provides additional guidance concerning accessibility of mobile apps, including:

  • user interactions using touch,
  • handling more complex gestures, and
  • avoiding unintended activation of an interface.

FDA Extends Date for Compliance with New Nutrition Facts Label; Menu Labeling Rules Take Effect

May 17, 2018

Categories

The FDA has extended the date for compliance with the Nutrition Facts and Supplement Facts Label and Serving Size final rules.  As we previously reported, the rules were finalized in May 2016 and initially set a general compliance date of July 26, 2018. Manufacturers with annual food sales of less than $10 million were given an additional year to comply.

The FDA has now issued a Federal Register notice extending the compliance dates by “approximately 1.5 years.”

The Nutrition Facts labeling rules:

  • Require an updated “Nutrition Facts” label with dual-column labeling for certain containers;
  • Require mandatory declarations for “added sugars” in grams and as a percentage of Daily Value (% DV);
  • Update the list of declared nutrients. Disclosure of vitamin D and potassium will be required. Calcium and iron will continue to be required. Vitamins A and C will no longer be required but can be included on a voluntary basis.

FTC Warns Against Warranty Conditions That Violate Magnuson-Moss Warranty Act

April 13, 2018

Categories

The FTC has sent warning letters to six major companies that market and sell automobiles, cellular devices, and video gaming systems warning against warranty tie-in provisions that state consumers must use specified parts or service providers to keep their warranties intact.

Unless warrantors provide the parts or services for free or receive a waiver from the FTC, such statements generally are prohibited by the Magnuson-Moss Warranty Act, the federal law that governs consumer product warranties.

Each company that received a warning letter used different language, but here are examples of questionable provisions:

  • The use of [company name] parts is required to keep your . . . manufacturer’s warranties and any extended warranties intact.
  • This warranty shall not apply if this product . . . is used with products not sold or licensed by [company name].
  • This warranty does not apply if this product . . .  has had
The attorneys of Bryan Cave Leighton Paisner make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.