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Website Accessibility Alert: Eleventh Circuit Court of Appeals Issues Important Split Decision in Winn-Dixie Website Action

Businesses with an online presence should take note that the United States Court of Appeals for the Eleventh Circuit has held—in a split decision—that websites are not places of public accommodation under Title III of the Americans with Disabilities Act (“ADA”).

On Wednesday, April 7, 2021, the Eleventh Circuit issued its much-awaited decision in Gil v. Winn-Dixie Stores, Inc. —holding that “websites are not a place of public accommodation under Title III” of the Americans with Disabilities Act (“ADA”) and that the plaintiff’s inability to access Winn-Dixie’s website was not a violation of Title III, vacating the decision of the district court, and remanding the case for further proceedings.

As we previously reported, Gil was the first website accessibility case to go to trial.  After a bench trial, the U.S. District Court for the Southern District of Florida held that Winn-Dixie had violated Title III of the ADA because its website was inaccessible to the visually impaired plaintiff.  Despite the fact that Winn-Dixie does not conduct sales through its website, the district court found that the website was “heavily integrated” with the physical store locations since customers could use the website to access digital coupons, find store locations, and refill prescriptions through the website.

The appeal presented three questions: (1) whether the plaintiff had standing to bring the case; (2) whether websites are places of public accommodation under Title III of the ADA; and (3) whether the district court erred in its verdict and judgment.  Opinion at 9.  In addressing the

California Court Halts New Prop. 65 Actions for Acrylamide as a Carcinogen

April 2, 2021

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A California district court has granted the California Chamber of Commerce’s preliminary injunction motion and prohibited the filing of new Proposition 65 lawsuits alleging exposure to acrylamide in food, pending the outcome of the case filed by the Chamber against the Attorney General’s office challenging enforcement of the cancer warning for acrylamide.

The order by Judge Kimberly J. Mueller states that “[w]hile this action is pending and until a further order of this court, no person may file or prosecute a new lawsuit to enforce the Proposition 65 warning requirement for cancer as applied to acrylamide in food and beverage products.”  The injunction applies to the Attorney General as well as private enforcers.

Although not a final prohibition on such enforcement actions, the ruling is expected to bring welcome relief to food manufacturers and retailers who have been hit hard by a wave of lawsuits.  There have been more than 1,000 60-day notices alleging exposure to acrylamide in food, and more than one-third of those were served in the past year.

The issue before Judge Mueller was whether the safe harbor warning language set out in the Proposition 65 regulations, which includes the use of the statement that the product is “known” to cause cancer, constitutes compelled speech which is not “purely factual and uncontroversial.”  After weighing competing factors of prior restraint, free speech, and conflicting scientific evidence, Judge Mueller concluded that the Chamber had demonstrated a likelihood of success in its argument that the warning is not “purely factual

Court Confirms that CCPA Is Not Retroactive

March 24, 2021

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In one of the first substantive decisions handed down since the California Consumer Privacy Act (“CCPA”) came into effect, the District Court for the Northern District of California held in Gardiner v. Walmart, Case No. 20-cv-04618-JSW (March 5, 2021) that the limited private right of action for the unauthorized disclosure of unencrypted personal information does not apply to conduct occurring prior to the statute’s January 1, 2020 effective date.

In Gardiner, plaintiff alleged personal information that he and other users of Walmart’s website provided in creating an online account, including credit card information, was accessed by hackers as a result of an undisclosed data breach and had been posted on the Dark Web. The District Court dismissed plaintiff’s CCPA claim, finding that plaintiff’s failure to allege the date of the alleged hacking and access of his data required dismissal because he could not show that it had occurred after the statute’s effective date, citing Civ. Code § 3 (“[n]o part of [this Code] is retroactive, unless expressly so declared.”) and People v. Brown, 54 Cal. 4th 314, 319-20 (2012) (“in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature must have intended a retroactive application.”). In so holding, the court also implicitly affirmed that in order to state a claim under the CCPA, a plaintiff must allege a data breach under §1798.150, rather than a violation of other CCPA provisions. See p. 4 (n order to have a viable

New Toxic Chemical Regulations: Is Your Supply Chain Impacted?

March 18, 2021

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There are new chemical regulations on the block, and your company’s supply chain might be implicated. These rules prohibit both the manufacturing of certain bioaccumulating chemicals as well as the distribution of products that contain these chemicals. Read on for a high-level summary of the rules and what you should expect next.

The U.S. Environmental Protection Agency (“EPA”) issued five final rules regulating the manufacture and distribution of certain persistent, bioaccumulative and toxic (“PBT”) chemicals pursuant to the Toxic Substance Control Act (“TSCA”) in January 2021. These rules became effective on February 5, 2021, and impact chemical and end use product manufacturers, suppliers, wholesalers, and merchants.

Click here to read the Alert in full.

US COVID-19: Under the American Rescue Plan, Providing FFCRA Leave Remains Voluntary

The American Rescue Plan (“ARP”), signed into law by President Biden on March 11, 2021, does not place any new paid leave requirements on private employers who were previously covered by the Families First Coronavirus Response Act (“FFCRA”).  However, as they have been able to do through the first quarter of 2021, such employers may voluntarily continue to provide Paid Sick Leave (“PSL”) and Emergency Family and Medical Leave Act (“EFMLA”) leave as set forth in the FFCRA and receive certain payroll tax credits for such wages.

In addition, the ARP expands various aspects of the FFCRA:

Expansion of PSL:

  • Employees can be given a new 10-day allotment of PSL for use from April 1, 2021 through September 30, 2021, even if they exhausted their PSL days during 2020 or used PSL with the employer’s permission during the period January 1 – March 31, 2021.
  • PSL can be used for additional reasons (subject to the FFCRA requirement that the employee be unable to work due to the qualifying reason), specifically:
    • for leave needed when the employee is seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID 19, where such employee has been exposed to COVID-19 or the employer has requested such test or diagnosis;
    • for leave needed when the employee is obtaining immunization related COVID-19; and/or
    • for leave needed when the employee is recovering from any injury, disability, illness, or condition related to COVID-19 immunization.

Expansion of EFMLA:

  • The first ten

Changing “Buy Now Pay Later” Regulations & Considerations for Retailers

On 2 February 2021, the FCA published its Review of the Unsecured Credit Market in the UK. The full title of the review is “The Woolard Review – A review of change and innovation in the unsecured credit market” (“the Review“). Critically, the Review recommended that all Buy Now Pay Later (“BNPL“) credit arrangements should be brought within the scope of the UK’s regulatory regime for consumer credit “as a matter of urgency”. Key amongst the various motivating factors for this recommendation is the idea that proper affordability assessments should be carried out on those being offered these credit products so as to prevent, or at least mitigate, potential consumer detriment.

Click here to read the Alert in full.

Year In Review: 2020 Food, Beverage & Supplement Litigation Round-Up

February 12, 2021

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The global pandemic, stay at home orders, and government issued lockdowns did not stop 2020 from being yet another active year for new regulatory activity and litigation targeting the food, beverage and supplement industries.

In this round-up, Bryan Cave Leighton Paisner LLP presents a collection of regulatory developments, key court decisions, and notable settlements that were reached in 2020.

The highlights of this 2020 round-up include:

  • New federal and state legislation governing food labeling, packaging, and taxation
  • Litigation trends within the food industry
  • COVID-19 related litigation and regulation
  • An update on regulations and litigation regarding CBD-based products
  • Slack fill litigation update
  • Plant-based product litigation update
  • Prop 65 and food safety update
  • Notable rulings and settlements
  • A preview of areas to watch in 2021

CPRA Digest – New Consumer Rights under CPRA and What That Means for Your Business

On November 3, 2020, Californians voted to pass Proposition 24, expanding and modifying the California Consumer Privacy Act (“CCPA”), which came into force on January 1, 2020. The new California Privacy Rights Act (“CPRA”) supersedes the CCPA and will be fully operative on January 1, 2023 (with a look-back period starting January 1, 2022). Until that time, the CCPA as written and amended generally remains in effect.  As we learned during the lead up to the CCPA, the time period to prepare for this type of comprehensive and complex legislation passes quickly, and businesses should begin their CPRA preparations sooner rather than later.  In this installment of the CPRA Digest, we discuss the expanded and new consumer rights under the CPRA, and the implications for organizations anticipating the CPRA.

Expanded Consumer Rights

The CPRA expands the following existing consumer rights:

  • In addition to having the right to request the categories of personal information about a consumer that a business sells, a consumer now also has to the right to know when their personal information is “shared” with a third party, and when information is otherwise disclosed for  a business purposes, including disclosures to a service provider.1

Under the CPRA, the concept of “sharing” personal information is novel and significant because it is aimed directly at cookies and similar technologies used for online advertising. “Sharing” is defined as renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a consumer’s personal Information

California Proposes Changes to Short-Form Prop. 65 Warning

February 10, 2021

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The short form of the California Proposition 65 warning that appears on numerous consumer products may look different in the future.  California’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed several significant changes to the language and permitted uses of the short-form warning.

Use Limited to Small Packages

When OEHHA issued the warning regulations that took effect in August 2018, it provided an option for a short form warning, intending that it be used on products too small to accommodate the longer warning.  However, the final regulatory language did not specify that the warning could only be used on small packages, resulting in its use on everything from pens to refrigerator boxes.

In response, on January 8, 2021, OEHHA proposed a regulation that provides that the warning can only be used where the following three conditions are met:

  • The total surface area of the packaging is five square inches or less;
  • The package shape or size cannot accommodate the full-length warning; and
  • The warning is printed in a type size no smaller than the largest type size used for other consumer information, but in no case smaller than 6-point type.

Use Permitted on Food Products

The proposed regulation clarifies a point of debate by confirming that the short form can be used on food products – so long as it’s set apart in a box just like the long form warning.

Use Prohibited for Internet and Catalog Warnings

OEHHA is also proposing to eliminate the option to use

U.S. COVID-19: OSHA Issues Guidance Addressing Mitigation and Prevention of COVID-19 in the Workplace

February 3, 2021

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Partner and Practice Group Leader, Energy, Environment and Infrastructure, Bryan Keyt; Partner Brandon Neuschafer; and Associate David Brankin wrote an article on OSHA’s new guidance to help employers better identify risks of being exposed to and/or contracting COVID-19 and to ascertain appropriate control measures employers can implement to address those risks.

Click here to read the full article.

California Prop. 65 Warning Requirement for THC Makes CBD, Hemp and Cannabis Products a Target

The California Proposition 65 warning requirement for THC took effect on January 3, making cannabis, hemp and CBD products a likely target for private enforcement actions.

Although under federal law CBD products are allowed to contain up to 0.3 percent THC, or Δ9-Tetrahydrocannabinol, no safe harbor level of exposure to THC has been established under Prop. 65.  That means private enforcers can argue that any detectable amount can subject a product to the Prop. 65 warning requirement.  Companies can work with consultants to develop a safe use determination for THC, but until it is established and accepted, enforcement actions will be a material risk.  Notably, the Prop. 65 listing applies to Δ9-THC, although the Prop. 65 requirements may still be triggered by residual Δ9-THC present in other THC products, like Δ8-THC distillates.

At the same time that THC was added to the Prop. 65 list, California’s Office of Environmental Health Hazard Assessment added a reproductive harm endpoint for cannabis (marijuana) smoke, which was already identified as a carcinogen under Prop. 65.  That means that although cannabis products intended to be smoked may already bear a Prop. 65 warning related to cancer, the reproductive harm warning should also be included.

As for THC, the listing raises Prop. 65 considerations for a much broader range of cannabis, hemp and CBD products, such as oils, edibles, beverages, and vape cartridges.  Plaintiff groups are expected to aggressively target these products, expanding on a multi-year trend of pursuing marijuana-based businesses for Prop. 65 violations.

For

Biometric and Facial Recognition Lawsuits and Regulation “Face” National Expansion

October 27, 2020

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The federal government is looking to put its finger on the pulse of biometric privacy with the proposed National Biometric Information Privacy Act of 2020 (S. 4400) “to regulate the collection, retention, disclosure, and destruction of biometric information.” Class action litigation over biometric privacy has already exploded across the country, so far centering on the alleged use of facial recognition and employee timekeeping technologies. In the last few years alone, cases have been brought on behalf of hundreds of thousands of claimants. If enacted, the National Biometric Information Privacy Act will all but ensure this number increases exponentially. This client alert provides a comprehensive overview of the proposed National Biometric Information Privacy Act and a comparison to other privacy statutes.

Click here to read the article in full.

California Extends Employee and B2B Exemptions under the CCPA

October 13, 2020

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Governor Gavin Newson signed into law AB 1281 on September 29, 2020. The bill amends Section 1798.145 of the California Consumer Privacy Act (CCPA), but it only becomes operational if voters do not approve a ballot initiative that amends the CCPA on the November 3rd election—namely, the California Privacy Rights Act (CPRA).

Click here to read the Alert in full.

September 24, 2020 If a business that operates a loyalty program provides a “notice of financial incentive,” is it required to disclose a numeric valuation of the value of a consumer’s data?

September 24, 2020

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Not necessarily.

If a loyalty program constitutes a “financial incentive,” the regulations implementing the CCPA require that a business provide a “notice of financial incentives” which, among other things, should include an explanation of how the financial incentive is “reasonably related” to the value of the consumer’s data.1  As part of that explanation, the business is purportedly required to provide a “good-faith estimate of the value of the consumer’s data that forms the basis” for the financial incentive and provide a “description of the method” used to calculate that value.2

The regulations implementing the CCPA indicate that a business may use any “reasonable and good faith method for calculating the value of the consumer’s data” to the business, but instructs the business to at least “consider” the following eight enumerated valuation methodologies:3

  • The marginal value to the business of the sale, collection, or deletion of a consumer’s data;
  • The average value to the business of the sale, collection, or deletion of a consumer’s data;
  • The aggregate value to the business of the sale, collection, or deletion of consumers’  data divided by the total number of consumers;
  • Revenue generated by the business from sale, collection, or retention of consumers’  personal information;
  • Expenses related to the sale, collection, or retention of consumers’ personal information;
  • Expenses related to the offer, provision, or imposition of any financial incentive or price or service difference;
  • Profit generated by the business from sale, collection, or retention of consumers’  personal information; and
  • Any other practical and reasonably reliable
  • Does the CCPA require that the benefits conferred by a loyalty program be “reasonably related” to the value of a consumer’s data to the business?

    September 18, 2020

    Categories

    Arguably no.

    The CCPA makes clear that a business can offer different prices or rates to consumers as part of a financial incentive program if those different prices or rates are “directly related to the value provided to the business by the consumer’s data.”1  The CCPA does not, however, directly prohibit the offering of a financial incentive if the value provided to the business by the consumer’s data is not “directly related” to the value of the financial incentive.

    The CCPA also states that a business may not, through a financial incentive program (or any other activity), discriminate against a consumer because the consumer “exercised any of [their] rights” under the CCPA (e.g., access, deletion, or opt-out of sale), unless the difference in price, rate, or quality that forms the basis of the discrimination is “reasonably related to the value provided to the business by the consumer’s data.”2

    In commentary published with the issuance of the regulations implementing the CCPA, the California Attorney General informally suggested that the Act might be interpreted as requiring that the benefit provided by all loyalty programs should be “reasonably related to the value of the consumer’s data to the business.”3  The California Attorney General did not explain, however, the basis for his assertion, and such a position would directly conflict with the text of the CCPA (described above) which applies the “reasonable relationship” test only to situations in which “discriminat[ion]” is prompted by the “exercise[] . . . of the consumer’s rights.”4 Furthermore, in other statements made

    California Passes COVID-19 Supplemental Paid Sick Leave Law

    September 17, 2020

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    On September 9, California Governor Newsom signed a bill that establishes COVID-19 supplemental paid sick leave (“COVID-19 PSL”) for California workers generally not covered by the federal Families First Coronavirus Response Act (“FFCRA”).

    Important Dates

    Employers are required to begin providing COVID-19 PSL by September 19.

    Employers must also post a notice in their workplace by September 19.  If employees are not physically present in the workplace, the employer may disseminate the notice electronically.

    Starting in the first pay period after September 9, employers must provide notice in a wage statement (or a separate writing provided on pay day) of an employee’s available COVID-19 PSL each pay period.

    The requirement to provide COVID-19 PSL expires on December 31, 2020 or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA.

    Covered Employers & Employees

    California’s new law applies to private employers with 500 or more employees in the United States.  It also applies to any public or private entity that employs health care providers or emergency responders and that has elected to exclude such employees from emergency paid sick leave under the FFCRA.

    Workers are entitled to COVID-19 PSL only if they are (1) employed by a covered employer AND (2) leave home to perform work for their employer.

    Reasons for Leave

    Employees are entitled to COVID-19 PSL when they are unable to work because they:

    • are subject to a federal, state, or local quarantine or isolation order related to COVID 19;
    • are advised
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